Skip to main content

Full text of "The Upper Clark Fork water news"

See other formats


s 

333.91 

M26ufcw 

1993- 



Montana State Librai 



in a State Library 



3 0864 1004 5768 1 



THE UPPER CLARK FORK 

Water News 



VOLUME I NUMBER 1 
SEPTEMBER 1993 



Y, 



r nr i i 

The 

Steering 

Committee 



-ou received this publication because you have water in- 
terests in the Clark Fork River Basin. If you haven't heard of 
the Upper Clark Fork Steering Committee or if you tend to shy 
away from involvement in water issues, maybe the time has come 
to get acquainted with this group. 

This committee is not what you would expect from a legis- 
lative mandate We are not a bunch of bureaucrats telling you 
what you can or can t do with your water rights or favorite stream. 
The committee's members are your neighbors, people who own 
land in the basin, people who hold water rights. They are also 
the guy who pulls that big trout out of your local stream; they 
are your county commissionei; your energy provider; state 
legislatoi; local historian; some are the hunters who use private 
and public land. 

This committee is meeting to discuss and research solutions 
to the age-old problem in the Clark Fork Basin: too litde water 
in the right place at the right time to meet everyone's needs. 
If you would be most comfortable knowing first-hand what 
recommendations will be made, please help us formulate those 
recommendations; you are the only one with intimate knowl- 
edge of how your operation or water interest will be affected. 

Some of the recommendations already suggested include 




enactment of a permanent, partial or total closure on new water 
rights in the upper Clark Fork Basin, voluntary riparian restora- 
tion projects, changes in irrigation practices, education, pollu- 
tion control, new or enhanced storage facilities, and cost-sharing 
of storage or conservation projects. 

The time you spend learning about and participating in the 
Upper Clark Fork Steering Committee's mission could save you 
concern and hard work later Once the recommendations have 
been agreed upon by your neighbors it will be a lot tougher 
to get your ideas across. Why not become part of the solution 
and get involved now. 

Jo Brunner 
Montana Water Resources Association 



Please join us on October 12! 



STATE DOCUMENTS COLLECTION 
. JAN; 4 1994 



Basin Closure Meeting 



MONTAN 



" " ~ HELENA, 

hould all or some portion of the upper Clark Fork River Basin be closed to new water 

rights? The Legislature has directed the Steering Committee to answer this question, but 

before doing so, we need to hear from you. To help you decide, the Steering Committee and 

the Montana Water Course will co-sponsor a basin-wide meeting on basin closure at Saint 

Mary's Center in Deer Lodge on Wednesday, October 12 at 7:00 PM. The meeting will 

allow you to explore what a closure is, and what it would mean to basin water users. We 

will also discuss how the water rights closure might come about, and how it might be 

designed to meet the needs of individual watersheds such as Flint Creek, Rock Creek, the 

Little Blackfoot River, the Big Blackfoot River, or the Clark Fork River Basin as a whole 



151$ E. 6th AVE. 

MONTANA 59620 



Please Join Us 



STATE LIBRARY 



A Grassroots Movement 



1~7 I. who Are Those Guys, Anyway? 

X. ew subjects in Montana generate conflict like the question 
of water use This is especially true in the Clark Fork River Basin 
where water is often in short supply during the low-flow days 
of summei; a time when water is most critical to irrigators, cities, 
fish, hydro-electric users, and recreationists. But the conflict 
doesn't have to occur; or at least not at its usual rancorous level. 

The Upper Clark Fork Steering Committee is searching for 
ways to make the available water go farthei; to serve more uses, 
and to help maintain a level of higher water quaUty. We need 
your help 

This committee was established after the 1991 Montana 
legislature placed a moratorium on most new permits issued 
for use of surface water in the upper Clark Fork region. The 
legislature directed this group to produce a water-use plan which 
would reduce conflict and satisfy more demands for the water 
of the upper Clark Fork drainage, which includes the river itself 
and its tributaries above Missoula. This committee must sub- 
mit its plan to the 1995 legislature, and the plan must include 
recommendations on how to better manage our water-without 
compromising existing water rights. 

An impossible task? Maybe not. Consider the diversity of 
the committee Representatives include the major stakeholders 
in the upper Clark Fork water picmre, including individuals 
representing cities, agriculture, utiUties and conservation 
organizations, as well as federal and state agencies. The group's 
plan will be unique to Montana because it is being generated 
by the grass-roots, not by bureaucrats. Committee members and 
their constituents will have a stake in ensuring the plan is car- 
ried out because they will have developed it themselves. And 
they will have developed it by building bridges between interests 
that are often at odds on water issues. 

But the committee needs your ideas. If you irrigste or recreate 
in the basin, if your electricity comes from hydro-electric powei; 
or your business or community depends on an adequate supply 
of clean surface watei; then the committee needs to hear from 
you. We want to know your concerns and recommendations. 



R 



II. What's Possible? 



k.ecommendations already discussed include limiting the 
issuance of new surface water permits in the upper basin, where 
there is often too litde water to service the current water rights. 
Also recommended is the expansion or building of new water 
storage facilities if money and public support are available The 
committee has discussed water conservation potential, improv- 
ing water quality through cooperative streamside improvement 
projects, and the establishment of water shed committees who 
could solve backyard water problems. 

Solutions are limited only by the amount of public participa- 
tion at the steering committee level. The water plan won't solve 
all the problems nor quell all the disputes, but it is a concrete 
beginning and will encourage continued public involvement 
in our water future Montanans are working with Montanans. 
We'd like you to join us. 

You can start by participating in water shed committees 
established for the Clark Fork main-stem -Rock Creek, Flint 
Creek, Little Blackfoot and Big Blackfoot Rivers. Contact your 



local steering committee member (see enclosed list) for more 
information, or contact Gerald Muellei; facilitator for the Upper 
Clark Fork Steering Committee 

Bruce Faiiing 



T. 



In THE Beginning 



.he date was February 22, 1991, the place the Senate Agri- 
culture Committee hearing room. Senate Bill 434 had just been 
tabled and apparendy would die Only minutes remained before 
the Agriculture Committee would adjourn, not to meet again 
until after the deadUne for transmitting bills from one house 
of the legislamre to the other An unusual -some said unholy- 
alliance was about to see the product of an unprecedented 
negotiation come to naught. 

Such an outcome probably should not have been surpris- 
ing, for the subject of SB434 involved sensitive and controver- 
sial water rights issues. Witer rights, per se, are not controversial. 
The legal system for deciding why and who and when water 
can be put to use -first in time, first in use -is well established. 
But change, or even the threat of change, to this system is another ^ 

matter Change raises not only controversy but also conflict in ^ 

various forms, verbal and legal being the most common. 

In recent years, talk and action aimed at seeking a way to 
keep more water in Montana's streams and rivers had increased. 
Two factors were responsible The first was the growing interest 
in water-related recreation and environmental concerns in uiban 
areas. The second was a seemingly endless drought. Montana's 
creeks and rivers were being dewatered, and in response, fishing, 
recreation, environmental otganizations, and hydroelectric util- 
ities turned to the courts and the legislature to seek protection 
for instream flows. The state's fish management and water quality 
agencies used the one available provision of existing law- water 
reservations -to pursue this same objective Montana's farmers 
and ranchers who saw instream flow protection as a threat to 
their water rights, and hence to their livelihoods and lifestyles, 
adamantly oppwsed both these efforts. For the most part, agri- 
culture had succeeded in blocking changes that would protect 
instream flows. This success, howevei; only inflamed the 
controversy. 

The alliance before the Senate Agriculture Committee was 
unusual because it included the traditional warring parties: 
agriculture, sportsmen and women, environmentalists, hydro- 
electric utilities, and state water and fish management agencies. 
Over the past several months, the members of the alliance had 
negotiated an agreement that called for postponing a water rights 
fight in return for addressing water allocation and management 
in the upper Clark Fork River basin in a new way- through the 
collective action of local water users and government managers. ^M 

Unfortunately, other local agricultural interests who had not ^^ 

participated in the negotiations felt that the impending fight 
over the application by the Department of Fish, Wildlife and 
Parks (DFWP) to reserve waters of the upper Clark Fork River 
Basin for instream flows should be pursued and DFWP defeated. ► 



► These interests opfxised SB434, and in the £ace of their opposi- 
tion, the Committee had tabled the bill. Howevei; in the clos- 
ing minutes, the alliance's local agriculture members were able 
to suggest compromise language acceptable to Senator Tom 
Beck, who lives in Deer Lodge and is the bill's sponsor and a 
member of the Agriculture Committee With Senator Beck's 
renewed support, SB434 passed the Senate Agriculture Com- 
mittee and eventually the full legislature to become law. Mon- 
tana's first grass roots basin water management planning effort 
was under way. 

The alliance of the traditional opponents supporting SB434 
did not form because any of them had "seen the light" and sur- 
rendered their interests. It formed, instead, as a result of two 
circumstances: the Northern Lights Research and Education 
Institute's Clark Fork Project and the pending water reserva- 
tion contested case hearing before the Montana Board of Natural 
Resources and Conservation (BNRC). 

Back in 1988, Northern Lights Instimte, a non-profit organiza- 
tion dedicated to creating opportunities to resolve natural 
resource disputes outside of the legal system, had formed a 
broad-based committee to develop consensus management 
strategies for the Clark Fork River From the efforts of this com- 
mittee came a focus on water allocation and creation of a task 
force including representatives of local irrigators (Headwaters 
RC&D, Granite Conservation District, and the Montana Water 
Resources Development Association), recreationists and envi- 
ronmentalists (Trout Unlimited and the Clark Fork-Pend 
Oreille Coalition), hydroelectric utihties (Montana Power Com- 
pany and Washington Water Power Company), and state and 
local government (the Departments of Fish, Wildlife and Parks, 
Natural Resources and Conservation, and Health and Environ- 
mental Sciences and the City of Missoula). Thus Northern lights 
was able to induce the interested and conflicting parties to sit 
in the same room and talk at, if not always to, each other 

These talks may not have been productive except for the sec- 
ond circumstance, the pending water reservation contested case 
hearing before the BNRC. In 1987 Granite Conservation District 
(GCD) and the DFWP had filed applications for reservations 
of waters in the upper Clark Fork River basin. GCD had filed 
to reserve unallocated water for irrigation storage projects on 
Lower Willow Creek and Boulder Creek. DFWP had sought to 
reserve unallocated waters of the Clark Fork mainstem and 17 
tributaries for instream flow. These applications were on a col- 
lision course The basin's water users were generally divided into 
two camps -those favoring and those opposing instream flow 
protection. Both interest groups found themselves faced with 
a time consuming, exjjensive, and divisive leg9l batde with an 
uncertain outcome This pending batde provided sufficient 
motivation for the parties to overcome their mumal suspicions 
and continue the discussions being faciUtated by Northern 
Lights. To their surprise, they were able to identify sufficient 
common interests to negotiate an agreement 

The key to the agreement was a proposal to close the upper 
Clark Fork Basin to most new surface water rights for a limited 
period. During this period a steering committee, including the 
parties to the agreement and a clear majority of local water users, 
would attempt to write a grassroots water management plan for 
the entire Clark Fork Basin above Milltown Dam just east of 
Missoula. The water reservation process would be suspended 
for the period of the basin water rights closure This agreement 
became SB434 which in turn became law. 

Gerald Mueller 




Stan Bradshaw is a 
charter participant of 
both the Upper Clark 
Fork Steering Commit- 
tee and the group 
whose negotiations led 
to creation of the steer- 
ing committee by the 
Montana Legislature 
After receiving a law 
degree from the Univer- 
sity of Montana in 1975, Stan went to work for the Montana 
Department of Health and Environmental Sciences and then 
the Montana Department of Fish, Wildlife and Parks. He left 
DFWP in 1986, and then lobbied for the Montana Council of 
Trout Unlimited for four legislative sessions, while also serving 
for a time as the group's resource director specializing in water 
policy. Stan is a partner in Helena's Greycliff Publishing Com- 
pany. He is also a fishing guide and canoeing instructoi; and 
practices a litde (as litde as possible, he says) law. 




Flint Creek Valley resi- 
dent, Jim Dinsmore, is 
another charter mem- 
ber of the steering com- 
mittee and the negotia- 
tion group. Bom in 
Cleveland, Jim has been 
raising commercial cat- 
de, hay, and grain on a 
ranch near Hall, Mon- 
tana, for 18 years. He at- 
tended the University of Montana from 1968-73 where he 
majored in geography. Dinsmore has been a supervisor on the 
Granite Conservation District for H years, a Hall School Board 
member for six years, and a member of the Headwaters RC&D 
Agriculture ^\^ter Committee. 

Gerald Mueller is facilitator for the Upper Clark Fork Steering 
Committee, as he was for the Clark Fork negotiation group 
Gerald's involvement in the river basin began when he became 
director of the Clark Fork Project of the Northern Lights Insti- 
mte, the nonprofit research organization that is sponsoring his 
current facilitation duties. He has also faciUtated resolution of 
disputes for a broad spectrum of clients in his private consulting 
practice 

Gerald's professional career started in 1974 in the Energy 
Planning Division of the Montana Department of Natural 
Resources and Conservation, first as an air analyst and later as 
program manager for the permit program that sites major in- 
dustrial or utility facihties. He worked for former Governor Ted 
Schwinden as an energy and natural resource advisor; and was 
later appointed to the Northwest Power Planning Council. He 
served on this important body from 1981-88. 



Upper Clark Fork River Basin 
STEERING COMMITTEE 



Jot AlBbGARIE 

City of Missoula 
435 Ryman 
Missoula, MT 59802 
523-4601 

Audrey Aspholm 

Former Deer Lodge County 

Commissioner 
400 Elm St. 
Anaconda, MT 58711 
563-6949 

Senator Tom Beck 
Senator from Deer Lodge 
651 Greenhouse Rd. 
Deer Lodge, MT 59722 
846-2452 

Stan Bradshaw 
Montana Trout Unlimited 
824-9th Ave. 
Helena, MT 59601 
443-4171 

Rep Vivian Brooke, 
Representative, District 56 
1610 Madaline Ave. 
Missoula, MT 59801 
728-3438 

Jo Brunner 

Montana Water Resources 

Association 
501 N. Sanders 
Helena, MT 59601 
442-9666 

Jim Dinsmore 

Granite Conservation District 

PO Box 224 

Hall, MT 59858 

288-3393 



Bruce Farling 

Clark Fork-Pend Oreille Coalition 

RO Box 7593 

Missoula, MT 59807 

542-0539 

Bob Fox 

US EPA Federal Bldg., 

Drawer 10096 

Helena, MT 59626 

449-5432 

Holly Franz 

Montana Power Company 

Gough, Shanahan, et al 

PO. Box 1715 

Helena, MT 59624-1715 

442-8560 

Lorraine Gillif.s 

Rancher & Rock Creek Advisory 

Council Member 

1500 Rock Creek Rd 

Philipsburg, MT 59858 

859-3383 



Gary Ingman 

Water Quality Bureau 

Department of Health &r 

Environmental Sciences 

Helena, MT 59620 

444-2406 

Ronald C. Kelley 
Deer Lodge Valley Water User 
350 Greenhouse Rd. 
Deerlodge, MT 59722 
846-2300 (W) 826-3825 (H) 

Land Lindbergh 
Big Blackfoot River 
235 Woodworth Rd. 
Ovando MT 59854 
793-5581 

Reed Lommen 

Washington Water Fbwer Company 

RO. Box 3727 

Spokane. WA 99220 

(509) 482-4783 



Coming Events 

Little Blackfoot Water Shed Committee Meeting 

Tuesday, September 21, 1993 

7:00 PM 

Avon School 

Avon, Montana 

Basin Closure Meeting 

Tuesday, October 12, 1993 

7:00 PM 

St. Mary's Center 

DeerLodge, Montana 

Upper Clark Fork River Basin 

Steering Committee Meeting 

Thursday October21, 1993 

9:00 AM 

St. Mary's Center 

DeerLodge, Montana 



Clark Fork Steering Committee 

PO. Box 8084 

Missoula, MT 59807-8084 



HAROLD L. CHOMBERS 
MONTflNft STftTE LIBRARY 
1515 E. SIXTH AVENUE 
HELENA, MT 596£0 



Eugene Manley 
Flint Creek Valley 
PO Box 15 
Hall, MT 59837 
288-3409 

Curt Martin 

Montana Department of Nawral 

Resources & Conservation 

1520 East Sixth Ave, 

Helena, MT 59620 

444-6699 

Jim C. Quigley 

Litde Blackfoot Rancher 

Sunset Ranch 

Box 256 

Avon, MT 59713 

492-6542 

Sandy Stash 

ARCO 

307 E. fork St. #400 

Anaconda, MT 59711-2389 

563-5211 

Ole Ueland 

Silverbow Rancher 

RR3 

Silver Bow, MT 59750 

782-6190 

Dennis Workman 

Montana Department of Fish, 

Wildlife & ferks 

3201 Spurgin Road 

Missoula, MT 59801 

542-5500 

Gerald Mueller 

Facilitator 

7165 Old Grant Creek Road 

Missoula, MT 59802 

543-0026 



NORTHERN LIGHTS INSTITUTI 

Phone: (406) 721-7415 

P.O. Box 8084 

Missoula, MT 59807-898^ 



dt f . wepa 



Non-Profit Organization 

U.S. Postage 
PAID 

Missoula, MT 59801 
Permit * 74 



J ^1 

^6 oJcaj 

THE UPPER CLARK FORK 



Water News 



Montana State Librarv 



3 0864 1004 5769 9 



VOLUME I NUMBER 2 
JANUARY 1994 



STATE DOCUMENTS COLLEqjjp;] 
fJAR ,1.!9M 



MONTANA STATE Lll RARY 

1515 E. 6th AVI . 
HELENA, MONTANA 19620 



In This Issue 



T. 



. he first issue of this publication introduced you to the 
Upper Clark Fork River Basin Steering Committee and the job 
assigned to it by the Montana legislature: preparing a com- 
prehensive water management plan that balances all of the 
beneficial water uses in the Upper Clark Fork Basin. In this 
issue you will find an oudine of the work plan guiding the 
Steering Committee's development of the plan. 

This Steering Committee and its efforts are unique Formed 
as a result of negotiations between water users, this is not a 
government program. The majority of its members are water 
users or representatives of water users, not government bureau- 
crats. The Steering Committee has committed itself to striv- 
ing to develop the water management plan via consensus. In 
this issue. Committee member Vivian Brooke explains why 
consensus is our goal. 

The center page of this issue is devoted to one of the main 
questions that the management plan must address: should the 
Upper Clark Fork Basin remain closed to the issuance of most 
new water rights after the existing temporary closure expires 
on June 30, 1995? The article spells out a basin closure pro- 
posal and asks for your response and ideas. 

This issue also includes biographies of Committee members, 
Vivian Brooke and Dennis Workman, and essays by Eugene 
Manley, retired manager of the Allendale Irrigation Company, 
who writes about irrigation return flows and related activities 
in the Flint Creek Valley, and Dennis Workman, fishery man- 
ager for west-central Montana for the Department of Fish, 
Wildlife and Parks, who explains fish habitat. 



Four Letter Word 



A 



Montana legislator was recendy overheard saying: "Con- 
sensus is a four-letter word." This statement and others like 
it express an attitude that consensus means "giving in," and 
that it is something one should never do. Attitudes such as 
"standing one's ground" or "not selling out" are popular in to- 





day's disgrunded populace 

But where do these attitudes get us? If we all "stand our 
ground," I suppose we'll each have our ground upon which 
to stand. And if we don't "give in" to compromise, each of us 
will have helped build more walls among ourselves. I don't 
see these as workable ideals in the Clark Fork Basin. 

There are a variety of interests in the basin, and many com- 
pete for water Consensus building has been and continues 
to be one of the primary operating principles of the Upper 
Clark Fork Basin Steering Committee In more than two years 
of committee meetings, we have heard reports, visited areas 
with water problems and discussed individual interests in 
detail. Through this process we have laid a foundation from 
which to build consensus. Each committee member brings his 
or her unique exp)erience and perspective to the table Once 
we begin to create a management plan, the members will be 
working with the understanding that they can't have everything 
exactiy as they want, or that no single member has all the 
answers to take care of everyone's concerns. The comp)eting 
interests -irrigators, power generators, municipalities, recrea- 
tionists and others -are a reality and it is our mutual task to 
find a way for all of us to exist in a way that interferes with 
each other as litde as possible By necessity, there will have 
to be some giving in and some compromise or the long hours 
of meeting will have gone for naught. But with consensus, the 
people and the users of the basin can move forward together 

I invite you to join the process of building consensus. 

Vivian Brooke, Montana House of Representatives 



>i V 



Ha 



Labitat is a word that several years ago produced blank 
stares bom many people Now it seems to be a household word. 
In the environmentally sensitive age of the 1990s, most people 
recognize habitat as the places where living things niust find 
the necessities for surviving on his planet. Former President 
Jimmy Carter and others have popularized the concept in 
reference to humans with their work in the Habitat for 
Humanity Program, which builds houses for low-income 
people To a biologist, habitat is everything. 

Biologists try to understand the complexities of habitats in 
order to sustain populations of animals and plants in the face 
of comf)eting demands on limited resources. So the habitat 
of particular animals, such as fish, get measured, photographed 
and monitored in every conceivable way in a quest for keys 
to successful management. Habitat is the environment of an 
organism, the conditions that provide food, shelter oxygen and 
other necessities needed to complete a species' life cycle On 
Montana's streams, good habitat is cool, clean, clear water flow- 
ing through deep p)Ools, steep riffles and logjams. Good stream 
habitat includes overhanging trees and brush, as well as under- 
cut banks. The more diverse the habitat, the better 

Naturally, adequate water is the most critical element of fish 
habitat and management The quantity of water in a stream 
controls how much space is available for fish, especially for 
the hiding cover that is found in deep pools, debris, undercut 
banks and rough stream surfaces. Water quantity also controls 
food production. Many fish prey, such as aquatic insects, re- 
quire some of the same basic habitat requirements as fish. 

Stream flow is easy to measure, and biologists have devel- 
oped many research-tested calculations and models that help 
them assess the amount of fish production that can be ex- 
pected from a given stream flow. In its 1986 application to 
reserve unappropriated water for in-stream flows in the upper 



FishHabiw 

When Is A Stream A Home? 

Clark Fork basin, Montana's Department of Fish, Wildlife and 
I^rks determined streamflow needs for fish by looking at chan- 
nel sizes and configurations in targeted streams. Reservation 
requests were based on habitat needs and what was poten- 
tially available, instead of historical or current water-use con- 
ditions. Because reservations by law aren't allowed to harm 
existing water rights, the department understood that some of 
the requested quantities would not be available in some places 
at some times of the year Senior water rights would retain 
precedence Yet the requests were still made to demonstrate 
what fish would need in given stream reaches. 

Water quality is another important aspect of habitat. Adult 
trout, for example, need water temperatures between 50 degrees 
F and 64 degrees F The range is narrower for juveniles and 
eggs, though it is still in the 50-degree range Shade is therefore 
required in the summer to keep temperatures livable Tem- 
perature also affects the amount of dissolved oxygen -a critical 
survival element for fish -that water can hold. The colder the 
water the more oxygen it can hold. Water also needs to be 
free of toxic substances such as pesticides. But the most in- 
sidious killer of fish populations is sand-sized sediment. It set- 
tles in gravelly areas that produce fish food or provide habitat 
for egg incubation. Accumulations of sediment reduce popula- 
tions without necessarily directly killing a fish. 

Volumes have been written about fish habitat. It is a com- 
plex of physical and chemical characteristics that exists in and 
next to streams. Though I can't do justice to the subject in 
a few hundred words, it is generally safe to say that land-use 
practices that are good for maintaining soils, terrestrial vegeta- 
tion and stream channel stability are also good for fish. 

Dennis Workman 
Montana Department of Fish, Wildlife and Parks 




RICHARD HENLEY PHOTO 



Water Rights Basin Closure 



ijhould all or portions of the upper Clark Fork River Basin 
be closed to new water rights? The Steering Committee must 
answer this question in the Upper Clark Fork water manage- 
ment plan. This mandate stems from the state law which closed 
the upper Clark Fork basin, with die exception of the Blackfoot 
and Rock Creek watersheds, to die issuance of most new sur- 
face water rights until June 30, 1995. 

The Steering Committee intends to make recommendations 
in the plan about basin closure only after listening to as many 
basin water users as possible On October 12, 1993, die Steer- 
ing Committee and the Montana Water Course of Montana 
State University co-sponsored a basin-wide meeting on closure 
in Deer Lodge to provide water users with basic information 
about what a closure is and how it happens, what a closure 
might mean for future water development, and what some of 
the advantages and disadvantages of closure might be Some 
thirty water users from throughout the basin attended and 
completed a survey of their views about closure Almost all 
respondents favored some form of basin closure or had not 
yet made up their minds about it. Basin closure has also been 
discussed during several meetings of die Blackfoot, Litde Black- 
foot, Flint Creek, and Upper Clark Fork mainstem and tribu- 
taries watershed committees. 

Based on the oral and written views received to date, the 
Steering Committee has developed die following draft proposal 
for a restriction on new water rights: 

The Upper Ciark Fork River Basin Steering Committee pro- 
poses TO CUDSE the Upper Clark Fork River Basin to the 

ISSUANCE OF NEW WATER RIGHTS. ThE AREA CLOSED WOULD IN- 
CLUDE the ENTIRE Clark Fork and Blackfoot River drain- 
ages ABOVE MlLUOWN DaM. THE CLOSURE WOULD BE CONDI- 
TIONED SO THAT IT WOULD NOT PREEMPT NEW PERMITS FOR THE 
DEVELOPMENT OF STORAGE FOR BENEFICIAL USES OR FOR DEVELOP- 
MENT OF GROUND WATER. AlSO, SURFACE WATER PERMITS FOR 
DOMESTIC, STOCK WATER, AND SUPERFUND USES WOULD CON- 
TINUE TO BE ALLOWED. ThE EXEMPTIONS TO THE CLOSURE WOULD 

be subject to review and reconsideration every four years 

prior to a regularly scheduled session of the montana 

Legislature. 

The Steering Committee is interested in your views on diis 
proposal and the following specific issues: 
■ 1. Definition of Ground Water 

The existing temporary closure defines ground water to 
mean: ". . . any water that is beneath the land surface or beneath 
the bed of a stream, lake, reservoir, or other body of surface water 
and that is not a part of that surface water!' The Department 
of Namral Resources and Conservation has interpreted diis 
language to require an applicant for a ground water permit 
to demonstrate diat a new well would not be connected 
hydrologically to any surface water Should this definition be 
retained or changed? How should it be changed? 



■ 2. Exemption for Surface Wafer Permits for Domestic Uses 
The existing temporary closure defines domestic use to 

mean: ". . . use of water common to family homes, including use 
for culinary purposes, washing, drinking water for humans and 
domestic pets, and irrigation of a lawn or garden of less than one 
aae, not to exceed a total of 3.5 acre-feet per year The term in- 
cludes municipal uses for expanded domestic use but does not 
include commercial or industrial usd' Should this definition be 
continued or changed? How should it be changed? 

■ 3. Exemption for Superfund Uses 

The existing temporary closure also exempts permits . . . 
to appropriate water to condua response actiorK or remedial actions 
. . ." pursuant to the federal Superfund stamte The Steering 
Committee has heard divergent views about continuing this 
exemption. 

Those in tavor of continuing a Superfund exemption argue 
that it would provide an opportunity for a broader range of 
remedial alternatives, some of which may require water for 
successfiil application. The Superfund program cannot pres- 
ently anticipate exactly where or when additional water may 
be needed. The Department of Natural Resources and Con- 
servation (DNRC) has afready required permits associated with 
a portion of the Wkrm Springs Ponds remedial action, and EPA 
and ARCO have cooperated widi die DNRC in obtaining diose 
permits and in analyzing the water rights situation for diat 
cleanup. It should be noted that continuing the exemption 
would mean only that an application for a water right could 
be made; it does not mean that water would be available 
automatically if that would harm senior water rights holders. 
It is EPAs intent diat die Superfund cleanup program in die 
Clark Fork drainage should not adversely impact any existing 
water rights. 

Those against continuing an exemption argue that it would 
amount to special consideration for one company and would 
be unnecessary The existing exemption was created by the 
legislature at die request of ARCO in response to its pending 
obligation to repair the environmental damages caused by min- 
ing, smelting, and related activities in the Butte-Anaconda area. 
Howevei; rather than make use of the exemption, ARCO (with 
die agreement of die DNRC) has taken die position diat it does 
not need a water right for water treatment in Warm Springs 
Ponds 2 and 3. In fact, a new water right granted under an 
exemption to die closure may have litde practical value for 
Superfund clean-up actions. Under Montana water law, a new 
right would be junior to all previously granted rights. This 
means that in many years a new right may not provide water 
during the irrigation season. To ensure water availability ARCO 
would have to purchase an existing water right with an early 
appropriation date and obtain a change of use permit Basin 
closure would not affect purchases of existing water rights or 
permits for changes to existing rights. ARCO should play by 



T. 



Upper Clark Fork River Basin 
SteemngC^ 

When Are Things Happening? 



. he Steering Committee has adopted a work plan and time- progress to date towards completion of the management plan, 

line to guide the preparation of the water management plan. While all Steering Committee meetings are open to the public. 

The following table which will be updated and included in some activities depend directly on the involvement of upper 

subsequent issues of The Clark Fork Water News summarizes the Clark Fork water users. These activities are printed in bold italics. 



ACTIVITY 

1. Develop Work Plan 



DURATION 

4 months 



DATES 

Sept. 1992-Jan. 1993 



STATUS 

Complete 



2. Steering Committee & Water Shed Committee 
Deliberations on Management Plan 

A. Form & Activate Water Shed Committees 

B. Water Shed Committee Deliberations 

C. Complete Steering Committee Deliberations 
on Draft Management Plan 



1.5 years 


Jan. 1993-June 1994 


Ongoing 


3 months 


Jan.-March 1993 


Complete 


1 year 


March 1993-March 1994 


Ongoing 


3 months 


April-June 1994 





3. Prepare Draft Management Plan 


2 months 


July-Aug. 1994 


4. Public Comment Period on the Draft Management 
Plan, Including Public Hearings 


8 weeks 


Sept. 5-Oct. .28, 1994 


5. Prepare Final Management Plan and Any Necessary 
Implementing Legislation 


6 weeks 


Oct. 31-Dec. 9, 1994 


6. BNRC and DNRC Review of Final Management Plan 


2 weeks 


Nov 28-Dec. 9, 1994 


7. Print Final Management Plan 


3 weeks 


Dec. 12-30, 1994 


8. Present Final Management Plan to Govemoi; 
Legislature and the Public 




Dec. 31, 1994 





the same rules as all other water users. It does not need and 
should not be granted an exemption fi-om the closure 

The Steering Committee is interested in your view concer- 
ning this issue 

■ 4. Review and Reconsideration of the Closure 

Should a closure have a built-in date for a review and recon- 
sideration of its provisions? How often should a review and 
reconsideration occur? The draft proposal above specifies a 
review every four years prior to a legislative session. It does 
so because the legislature is the body that can modify the 
closure If a review and reconsideration is a good idea, should 



some body such as a {permanent Upper Clark Fork River Basin 
Steering Committee or the Board or Department of Natural 
Resources and Conservation conduct them and make recom- 
mendations to the legislature? The Steering Committee would 
appreciate your thoughts on these questions. 

Responses to these questions and any other comments can 
be provided at any Steering Committee or watershed committee 
meeting or to any member of the Steering Committee (please 
see the address and telephone list on the back page of this 
issue) or to the Committee's facilitatoi; Gerald Mueller; at 7165 
Old Grant Creek Road, Missoula, MT 59802. 




V ivian Brooke is one 

of two legislators (the 

other being Senator 

Tom Beck of Deer 

Lodge) appointed to the 

Clark Fork Steering 

Committee Vivian has 

represented Missoula's 

University District in 

the Montana House of 

Representatives since 

1988. She serves on the House Judiciary and Natural Resources 

Committees. She served one term on the Legislative W^ter Fblicy 

Committee Bom in New York and raised in Florida, Vivian 

started to come to Montana in 1956 to work on an uncle's resort 

near Glacier F^rk She stayed in Montana for good in 1962 when 

she started attending Carroll CoUege, where she received a degree 

in sociology and later worked as a social worker Vivian moved 

to Missoula in 1966, raising three daughters and a son and 

volunteering in many church, school and community activities. 

Her husband, Joe, is part owner of Eagle Stud Mill in Hall. 




X^ennis Workman 
was appointed to the 
Upper Clark Fork Steer- 
ing Committee in Aug- 
ust 1992, replacing 
Eileen Shore as the 
representative for Mon- 
tana's Department of 
Fish, WUdlife and Parks. 
Dennis began working for the agency in 1971, and has been 
the department's fishery manager for west-central Montana since 
1979. He has 15 years experience working with landowners and 
on fish and wildlife issues in the Clark Fork basin. Dennis hails 
from a small farm in Iowa and has a bachelor's and a master's 
degree in fish and wildlife management from Utah State and 
Montana State Universities. He and his wife, Karen, live in 
Missoula. 



Irrigation Return Flows 



Ho 



Low well do we really understand return flows from irri- 
gation? First we must understand that the sources of all water 
in a basin are natural, created by nature through rainfall and 
accumulated snowpack. 

Return flows in a basin are those waters created by flood 
irrigation, a method that spreads water across tracts of land 
to increase production. Some of this water is used by crops, 
some evaporates, but the largest amount seeps into underlying 
aquifers composed of materials such as clay, sand, gravel and 
bedrock. Within a short time, some of that water returns to 
the surface in the form of small seeps and springs that com- 
bine to create new water courses and supplement existing ones. 

Some return flows develop almost immediately, others 
develop over varying lengths of time, and in ever increasing 
flow rates. It is this sort of long-term development of return 
flows that can help stabilize water sources. Over time, and with 
distance downstream, we find the source of irrigation water 
changes from natural flow to return flow. At the same time, 
we find in many streams this return flow can add up to a 
greater volume of water than might flow naturally, and that 
return flow furnishes most of the water in many reaches of 
a basin. Return flows, then, can contribute to the overall effi- 
ciency of the basin's usage of the original natural flow. 

To illustrate these points, we can look to Willow Creek in 
the Flint Creek Basin of Granite County. There, water available 
for irrigation is measured, as are all diversions for irrigation. 
In 1988, a very dry yeai; late in the irrigation season on a par- 



An Important Water Resource 

ticular day, natural flow measured 1,035 miners inches of water 
(about 26 cubic-feet per second). Yet the measured amount 
diverted at the drainage's irrigation diversions totaled 4,100 
miners' inches. The difference of more than 3,000 inches came 
from return flows created by early season flood-irrigation. 

Because return flows can become an integral component 
water usage in a basin, we must learn more about what creates 
them, where they are and in what amount. Then, and only 
then, can we become more efficient in our use of available 
water We must also leam what actions can adversely affect 
strategic return flow patterns. 

Last May, I learned that if might be possible to get the U.S. 
Bureau of Reclamation to study return flows. In June, steering 
committee participants Gerald Muellei; Jo Brunner and 1 met 
with staff from the Bureau and from the Montana Department 
of Natural Resources and Conservation to discuss a possible 
study. I told them the Clark Fork's Flint Creek Basin would 
be the ideal place to study, and that its results could be educa- 
tional to all water interests in the basin. After the meeting, we 
toured the basin and looked at its water sources and some 
of its established return flows. 

Now, initial preparations are underway to do the study, and 
I hope the results open the way for a better understanding of 
how we can manage our water more effectively here and 
throughout Montana. 

Eu^ne Manley 



Upper Clark Fork River Basin 
STEERING COMMITTEE 



e 



Joe Aldegarie 
City of Missoula 
435 Ryman 
Missoula, MT 59802 
523-4601 

Audrey Aspholm 

Former Deer Lodge County 

Commissioner 
400 Elm St. 
Anaconda, MT 58711 
563-6949 

Senmor Tom Beck 
Senator from Deer Lodge 
651 Greenhouse Rd. 
Deer Lodge, MT 59722 
846-2452 

Stan Bradshaw 
Montana Trout Unlimited 
824-9th Ave. 
Helena, MT 59601 
443-4171 

Rep. Vivian Brooke 
Representative, District 56 
1610 Madeline Ave. 
Missoula, MT 59801 
728-3438 

Jo Brunner 

Montana Water Resources 

Association 
501 N Sanders 
Helena, MT 59601 
442-9666 



Jim Dinsmore 

Granite Conservation District 

PO Box 224 

Hall, MT 59858 

288-3393 

Bruce Farling 
5814 Strawberry Lane 
Florence, MT 59833 
273-0953 

Bob Fox 

US EPA Federal Bldg , 

Drawer 10096 

Helena, MT 59626 

449-5432 

Holly Franz 

Montana Power Company 

Gough, Shanahan, et. al. 

PO. Box 1715 

Helena, MT 59624-1715 

442-8560 

Lorraine Gillies 

Rancher & Rock Creek Advisory 

Council Member 
1500 Rock Cr Rd. 
Philipsburg, MT 59858 
859-3383 



Gary Ingman 

Water Quality Bureau 

Department of Health & 

Environmental Sciences 

Helena, MT 59620 

444-2406 

Ronald C. Kelley 
Deer Lodge Valley Water User 
350 Greenhouse Rd. 
Deerlodge, MT 59722 
846-2300 (W) -3825(H) 

L\ND Lindbergh 
Big Blackfoot River 
235 Woodworth Rd. 
Ovando MT 59854 
793-5581 

Reed Lommen 

Washington Water Power Company 

PO. Box 3727 

Spokane, WA 99220 

(509) 482-4783 

Eugene Man ley 
Flint Creek Valley 
PO, Box 15 
Hall, MT 59837 
288-3409 



Curt Martin 

Montana Department of Namral 

Resources & Conservation 

1520 East Sixth Ave. 

Helena, MT 59620 

444-6699 

Jim C Quigley 

Little Blackfoot Rancher 

Sunset Ranch 

Box 256 

Avon, MT 59713 

492-6542 

Sandy Stash 

ARCO 

307 E. Park St. #400 

Anaconda, MT 59711-2389 

563-5211 

Ole Ueland 

Silverbow Rancher 

R.R3 

Silver Bow, MT 59750 

782-6190 

Dennis Workman 

Montana Department of Fish, 

Wildlife & Parks 

3201 Spurgin Road 

Missoula, MT 59801 

542-5500 

Gerald Mueller 

Facilitator 

7165 Old Grant Creek Road 

Missoula, MT 59802 

543-0026 



^ 



2,400 copies of this newktter were printed al an estimakd cost of 26i each. 



NORTHERN LIGHTS INSTITUTE 
Qarh Fork Steering Committee 
PO. Box 8084 
Missoula, MT 59807-8084 



Non-Profit Organization 

U.S. Postage 

PAID 

Missoula, MT 59801 
Permit # 74 



HAROLD L. CHAMBERS 
MONTANA STATE LIBRARY 
1515 E. SIXTH AVENUE 
HELENA MT 59620 




b UJ-CUJ 



Montana State Librai 



3 0864 1004 5770 7 



THE UPPER CLARK FORK 

Water News 



mil DOCUMENTS COLLECTION 

JUL 05 1994 

MONTANA STATE LIBRARY 
(ii^iNA, MONTANA 59620 



VOLUME I NUMBERS 
JUNE 1994 



In This Issue 



w. 



hen it authorized the creation of the Upper Clark 
Fork River Basin Steering Committee, the Montana Legislature 
directed the committee to write a comprehensive water man- 
agement plan that must: 

1. Consider and balance all beneficial uses of the water 
in the Upper Clark Fork River basin; 

2. Contain recommendations regarding the temporary 
closure of the Upper Clark Fork River Basin to most new sur- 
face water rights; 

3. Identify and make recommendations regarding resolu- 
tion of water-related issues in the Upper Clark Fork River Basin. 

The second issue of this publication set forth and asked 
for our readers comments on a proposal that would continue 
the basin surface water rights closure It also explained two 
basin water issues identified by the Steering Committee: fishery 
habitat needs and irrigation return flows. In this third issue, 
the center page addresses the requirement that the plan con- 
sider and balance the basin's beneficial water uses. This edi- 
tion also discusses three additional topics, a proposal to reduce 
nutrient pollution of the Clark Fork River by using the out 
flow of the Deer Lodge sewage treatment plant to irrigate hay 
fields rather than discharging it to the Wver; a study being 
conducted by the Soil Conservation Service of new or upgrades 
to existing water storage facilities; and hydropower generation 
on the Clark Fork River 

This issue ako introduces additional Steering Commit- 
tee members: Joe Aldegarie and Bruce Farting. 



Hydro Story 



V>l2 



<lark Fork River water has many uses and benefits, 
including the production of renewable energy through low- 
cost hydroelectric power The Montana reach of the Clark Fork 
has three power generating plants: Milltown and Thompson 
Falls are owned by the Montana Power Company (MPC), and 
Noxon Rapids is owned and run by the Washington Water 



M>»soul 




Power Company (WWP). All three have water rights for storage 
and power generation. 

The oldest Clark Fork hydroelectric facility is Milltown 
Dam, which was developed by Butte copper king W.A. Clark 
to power the sawmill at Bonner Milltown's electricity also ran 
electric lights in Missoula and an electric railway service run- 
ning between Missoula and Bonner The water rights at Mill- 
town have a 1904 priority date Milltown dam is a small facility 
It generates 3.4 megawatts, using 2,000 cubic-feet per second 
(cfs) and up to 1,451,556 acre-feet of water a year (af/yr) to 
generate powei; and 940 cfs for storage At times, more than 
half the water flowing through the dam is from the Blackfoot 
River MPC's water rights at Milltown will therefore be adjudi- 
cated in three basins: two Clark Fork River sub-basins (76G 
and 76M) and the Blackfoot (76F). 

Thompson Falk Dam was completed in 1917. It was de- 
veloped to provide power for sawmills at Thompson Falls, the 
mines in the Coeur dAlene region and the Chicago, Milwaukee 
and St. Paul Railroad. Based on notices of appropriations, the 
priority dates for MPC's water rights at Thompson Falls range 
from 1905 to 1909. Thompson Falls' historic total generating 
capacity is 40 megawatts, and it uses 11,120 cfs and up to 
8,050.508 af/yr for generating jxjwei; as well as 7,547 cfs for 
storage MPC's water rights for Thompson Falls were decreed 
as part of Basin 76N. The company is currently expanding the 
facility to generate another 50 megawatts. 

Completed in 1960, Noxon Rapids Dam is owned by 
Washington Wkter Pbwei; a utility company somewhat smaller 
than MPC. Noxon Rapids has a nameplate generating capac- [> 



ity of 466.2 megawatts, which serves ratepayers in northern 
Idaho and eastern Washington. Noxon Rapids is part of the 
interconnected system that benefits electrical users throughout 
the intermountain region and annually provides approximately 
four million dollars in direct tax dollars to the State of Mon- 
tana and Sanders County. WWP's water rights at Noxon Rapids 
total 55,400 cfs. Of this, 40,400 cfs are decreed rights- 35,000 
have a priority date of Feb. 20, 1951 and 5,400 have a priority 
date of April 3, 1959. The decreed rights include 29,248,264 
af/yr for power generation; 267,000 af/yr to maintain minimum 
reservoir elevation; 230,700 af/yr used once a year for stream 
flow regulation; and 38,400 af/yr usable at any time to meet 
electric-system load requirements and regulate stream flows. 
An additional 15,000 cfs were granted in a provisional water 
use permit issued by the State of Montana in 1976. 

All the tributaries of the Upper Clark Fork contribute water 
for beneficial use and reuse at the downstream dams. Because 
they are hydroelectrically connected, the large hydroelectric 
water rights on the Clark Fork River affect the availability of 
water in the river's upper reaches. Because the hydroelectric 
water rights are large, many existing and all new water alloca- 
tion activities in the Clark Fork River Basin affect the ability 
of the power companies to exercise their water rights. The Clark 
Fork doesn't have enough water to fill these hydroelectric water 
rights year-round. Milltown, the smallest of the dams, generally 
has only enough water to satisfy its rights April through June 
According to a 1988 Montana Department of Natural Resources 
and Conservation study, Noxon Rapids Dam's water rights are 
satisfied an average of only 22 consecutive days a yeai; generally 
late May to early June A 1988 Montana State University study 
concluded that additional diversions above Noxon cause a 
direct reduction in power generation at the dam. 

Concerns over water availability prompted the two power 
companies to intervene in Granite Conservation District's 
late-1980s application process to reserve water in the upper 
Clark Fork. But instead of pursuing their objections, the com- 
panies, like other users in the basin, decided to participate on 
the Upper Clark Fork River Basin Steering Committee In addi- 
tion, both utilities are cooperating with state and federal agen- 
cies to improve recreation opportunities and wildlife and fish 
habitat in the basin. They hof)e cooperation with steering com- 
mittee members also produces a comprehensive water manage- 
ment plan that addresses the concerns of both pwwer generators 
and other water users in the Clark Fork Basin. 

Holly Franz 

Montana Power Company 

and Steve Fry 

Washington Water Power Company 



Storage 



/is' 



; we watch the warm, longer days of spring emerge, high- 
mountain snows melt and either seep into the ground or form 
rivulets that collect and fill the Clark Fork Basin's streams. Latei; 
in August, we may stand on streambanks and wish for the 



return of spring's high and rolling waters because summer's 
flows are often not adequate for satisfying demands for irriga- 
tion, stock watei; trout fishing and personal consumption. And /^] 
that's why historically water storage has become a manage- 
ment tool used to "save" water 

Because development of new storage projects is a manage- 
ment alternative often brought to the table during public 
discussions on watei; the Upper Clark Fork River Basin Steer- 
ing Committee is examining its potential. 

Water users in six sub-watershed committees of the up- 
per Clark Fork Basin have been asked to discuss storage, review 
suggestions of the steering committee and make recommen- 
dations on potential storage sites, site conditions, possible bene- 
ficiaries and local acceptance The steering committee places 
a high value on the thoughts of the subcommittee members. 

The steering committee has also formed a subgroup to ex- 
amine water storage potential. This group has assembled and 
examined studies for new or enhanced water storage projects. 
It has also developed a screening process for ranking pxjten- 
tial storage sites. The group looked at location, potential reser- 
voir size and safety hazards, amount of dam fill versus water 
stored, potential for resolving water-use conflicts and geological 
impediments. A list of ranked reservoirs and the screening 
process have been presented to the subcommittees and Steer- 
ing Committee 

After receiving recommendations (with the subcommit- 
tees' receiving extra attention), the Steering Committee and its 
storage subgroup identified eight potential or current storage 
locations as "high interest" sites. Howevei; high interest doesn't 
necessarily indicate they are feasible Additional information 
on the sites must be evaluated and updated to determine if ^ 
they are viable for storage projects. Existing information on ^ 

storage sites will be translated into a standardized summary 
and examined under today's legal, financial and technical con- 
ditions. Among the items to be examined are: construction 
requirements and costs, known or modeled water availability, 
existing water rights, present operating regulations, new land 
use conditions and potential beneficiaries. The Steering and 
storage committees will be helped in this task by the U.S.D.A. 
Soil Conservation Service and Montana Department of Natural 
Resources and Conservation. 

The Steering Committee's investigations hopefiilly will 
determine which high interest sites warrant further site-specific 
smdy of the physical, economic and environmental conditions 
required to pursue construction of a storage project. 

High-Interest Storage Sites 

New Sites 

Lower Brown's Gulch, near Ramsey 

Cable Creek, west of Anaconda 

Blackfoot Meadow, above Elliston 

Upper Three Mile Creek, near Avon 

Existing Sites 

Rainbow Lakes, southeast of Drummond 

Gold Creek Lakes, southeast of Drummond 

Upper Douglas Creek, southeast of Hall 

Storm-Silver Lake, west of Anaconda 

Mike McLane 
Montana Department of Natural Resources and Conservation 



Balancing Benercial WvterUses 



o„ 



ne of the directives of the Montana Legislature to 
the Upper Clark Fork River Basin Steering Committee in 
writing a comprehensive vrater management plan is to "con- 
sider and balance" all beneficial uses of water in the Upper 
Clark Fork River Basin. The Legislature did not, howevei; specify 
what "consider and balance" means. The Steering Committee 
has therefore tentatively developed the following five-part 
response to this direction. We ask for your comments on this 
approach. 

Your comments or questions can be provided at any Steer- 
ing Committee or watershed committee meeting or to any 
member of the Steering Committee (please see the address and 
telephone list on the back page of this issue) or to the Com- 
mittee's facilitatoi; Gerald Muellei; at 7165 Old Grant Creek 
Road, Missoula, MT 59802. 
I. Water Uses 

The plan will list as beneficial the following uses of water 
in the Upper Clark Fork River Basin, but will not prioritize 
them or decide which uses are legitimate and valuable The 
order of the list does not suggest any priority. 

Agriculture and stock watering 

Domestic 

Ecological 

Educational and scientific 

Flood control and storage 

Fur bearer and waterfowl habitat 

Industrial/mining 

Municipal 

Power generation 

Recreation 

Return flows 

Salmonids (cold water fish) and aquatic life habitat 

Transportation 

Tribal cultural rights 

Water quality 
n. Critical Water Needs or Problems 

The plan will identify critical needs or problems for any 
of the above uses together with the possibilities for meeting 
the needs and fixing the problems where possible The plan 
will attempt to address first the needs or problems affecting 
the largest number of the above uses. 
in. Basin Specific Water Management Mechanism 

The plan will recommend creation of an on-going basin 
water management mechanism including a basin-wide com- 
mittee and watershed committees. The mechanism would not 
be vested with legal authority to compel any action by any 
water user or water interest. It would be charged with the 
following objectives: 

A. Provide a forum for all interests to communicate about water 
issues; 

B. Provide education about water law and water management 
issues; 

C. Identify short-term and long-term water management issues 
and alternatives for resolving them; 



D. Facilitate resolution of water related disputes via consensus- 
based collaborative processes including mediation; 

E. Consult with the basin's local governments; and 

E Report periodically to some entity with water management 

authority such as the legislature 

The Steering Committee has agreed that the mechanism 
should include representation of the fiiU range of the basin's water 
interests as members, but has only identified alternatives by which 
these members might be appointed. The alternatives include: 

1. The State Water Plan Model -The mechanism would 
be included in the State Water Plan so that members of the 
basin-wide committee would be appointed by the Director of 
the Department of Natural Resources and Conservation pur- 
suant to direction from the Ijegislature as to the types of water 
interests to be represented (as was the case for the Steering 
Committee). Members of the watershed committees could be 
appointed by the basin-wide committee or local government 
officials such as county commissioners. 

2. The Local Government Model -Local government offi- 
cials such as county commissioners could appoint both the 
basin-wide committee and the watershed committees. 

3. The Grass Roots Model -Local government officials 
such as county commissioners could appoint the watershed 
committees, and the watershed committees could designate 
the basin-wide committee members. 

The Steering Committee is interested in your views and 
supporting rationale for an appxjintment mechanism. 
IV Reserving Water for Future Water Uses 

The Steering Committee has agreed that water should some- 
how be reserved for future uses in principle, but has not setded 
on a specific proposal for doing so. The alternatives include: 

A. Closing the basin to most new surface water rights with 
an exemption for storage of high water for multiple uses 
and a {periodic review of the closure exemptions. The pro- 
vision for additional storage of high flows and the periodic 
review would have the effect of reserving both unap- 
propriated water and high flows for future use 

B. Pursuing the formal water reservation process suspended 
by the Legislature in 1991. 

Y Providing Protection for Instream Flows 

The Steering Committee has discussed including protec- 
tion of instream flows in some manner as a part of balancing 
water uses. One means of providing protection might be to 
allow the Department of Fish, Wildlife and Parks to purchase 
an existing water right from a willing sellei; convert it to an 
instream right, and then protect it against appropriation by 
junior users. To obtain and protect an instream right in a 
specific stretch of a stream, DFWP would be required to pro- 
ceed through the water rights change process, and demonstrate 
that no other water right holder would be adversely affected 
by the change 

The Steering Committee is entertaining the idea of pilot 
testing this approach for a limited period only in the Upper 
Clark Fork River Basin. 



T. 



Upper Clark Fork River Basin 

SrEEmNGCOM 

When Are Things Happening? 



. he Steering Committee has adopted a work plan and time- progress to date towards completion of the management plan, 

line to guide the preparation of the water management plan. While all Steering Committee meetings are open to the public, 

The following table which will be updated and included in some activities depend directly on the involvement of upper 

subsequent issues of The Clark Fork Water News summarizes the Clark Fork water users. These activities are printed in bold italics. 



ACTIVITY 

1. Develop Work Plan 



DURATION 

4 months 



DATES 

Sept. 1992-Jan. 1993 



STATUS 

Complete 



2. Steering Committee & Water Shed Committee 
Deliberations on Management Plan 

A. Form & Activate Water Shed Committees 

B. Water Shed Committee Deliberations 

C. Complete Steering Committee Deliberations 
on Draft Management Plan 



1.5 years 


Jan. 1993-June 1994 


Ongoing 


3 months 


Jan.-March 1993 


Complete 


1 year 


March 1993-March 1994 


Ongoing 


3 months 


April-June 1994 





3. Prepare Draft Management Plan 


2 months 


July-Aug 1994 


4. Public Comment Period on the Draft Management 
Plan, Including Public Hearings 


8 weeks 


Sept. 5-Oct. .28, 1994 


5. Prepare Final Management Plan and Any Necessary 
Implementing Legislation 


6 weeks 


Oct. 31-Dec. 9, 1994 


6. BNRC and DNRC Review of Final Management Plan 


2 weeks 


Nov. 28-Dec. 9, 1994 


7. Print Final Management Plan 


3 weeks 


Dec. 12-30, 1994 


8. Present Final Management Plan to Govemoi; 
Legislature and the Public 




Dec. 31, 1994 





DeerLodge Wastewaterand Land Appucation 



K 



.igh levels of the nutrients nitrogen and phosphorus 
in the upper Clark Fork River attract considerable attention 
because they stimulate the growth of high densities of water 
plants, much like fertilizers enhance the growth of crops and 
lawns. The nutrients trigger a proliferation of attached algae, 
which impairs many beneficial uses of the river and causes 
violations of state water quality standards. Nutrient sources 
affecting the Clark Fork include municipal and industrial 
wastewater discharges, stormwatei; diffuse runoff (so-called 
nonpoint pollution) from agricultural and urban areas, and 
natural geological sources. 

Using treated municipal wastewater for crop irrigation can 



reduce nutrient pollution and provide nitrogen and phosphorus 
for crops. Many uses of streams, including irri^tion and recrea- 
tion, can benefit when wastewater discharges are put on crop- 
land instead of into surface waters during summer when 
nutrient influences in streams are most pronounced. This win- 
win scenario is currently being evaluated in the Upper Clark 
Fork Basin under a cooperative arrangement between the City 
of Deer Lodge, the National Park Service's Grant-Kohrs Ranch, 
the Montana Department of Health and Environmental 
Sciences (MDHES) and several private landowners. 

The idea of applying municipal wastewater from Butte, 
Missoula, and Deer Lodge on agricultural lands was first recom- 



mended in the 1992 Clark Fork nutrient management plan 
developed by MDHES. That plan was merged with similar 
strategies for reducing nutrients in the Idaho and Washington 
portions of the Clark Fork-Pend Oreille Basin, resulting in a 
master "tri-state plan" that identifies pollution sources and 
recommends local solutions for eliminating them. 

In May 1993, an Upper Clark Fork Basin Steering Com- 
mittee sub-group heard recommendations from the tri-state 
plan and beg9n discussions to evaluate the possibility of using 
Deer Lodge's municipal wastewater for irrigation during the 
summer The group included ranchers, recreationists, local in- 
dustry and city, county and federal officials. The Deer Lodge 
discharge seemed to be a good candidate for land-application 
to agricultural fields given the following: the proximity of a 
main irrigation supply ditch to the Deer Lodge wastewater 
lagoons, nearby agricultural use patterns, the relatively small 
amount of wastewater involved and a seasonal shortage of irri- 
gation water in the Deer Lodge Valley. 

Lands served by Deer Lodge's Kohrs-Manning ditch were 
an early focus of study for irrig9tion with municipal wastewater 
Howevei; after a ditch company representative told the sub- 
committee that the land served by the ditch had a shallow 
groundwater system and return flows that returned quickly 
to the rivei; the committee began to look elsewhere The 
National Park Service then graciously offered more than 100 
acres of pasture as a potential application site This land ad- 
joins the city's wastewater lagoons. In addition, rwo other adja- 
cent landowners have expressed interest in some of the 




Ice Aldegarie was ap- 
pointed to the Upper 
Clark Fork River Basin 
Steering Committee to 
represent the City of 
Missoula. Joe Aldegarie 
has been the Director 
of Public Works for the 
City of Missoula for tlie 
past 12 years. Prior to 
that, he worked as the 
Director of Emnron- 
mental Health with the Missoula City-County Health Depart- 
ment for six years. He also served for two years on the State 
Water Planning Advisory Council. Joe was bom in the Upper 
Peninsula of Michigan and graduated there from the Michigan 
Technological University with a bachelor's degree in Civil 
Engineering with a specialty in Sanitary Engineering. After two 
years with the Michigan State Highway Department, he moved 
to the Los Angeles area and worked for the City of Beverly 
Hills for 10 years prior to moving to Missoula in 1975. He and 
his wife, Sondra, have three grown daughters and reside in the 
Ratdesnake Valley of Missoula. 



wastewater 

The City of Deer Lodge is now cooperating with MDHES 
in evaluating the feasibility of seasonal land-application of its 
wastewater A MDHES grant was matched with a 25 percent 
contribution from the city to fund a contracted engineering 
evaluation. Among other things, the evaluation will look at 
lagoon outflows, characteristics of the wastewater; suitability 
of the potential application sites (soils, crop needs, etc.), suit- 
ability of using Grant-Kohrs Ranch's existing irrigation system 
and public health and environmental consequences. Study 
results are due in May. 

If the study indicates the project is viable, funding for 
the plan will probably come from a combination of sources, 
including the city, private sources, the state and federal 
government. 

Though it is premature to predict the viability of the plan, 
the project's partners are optimistic. Land application of all 
of Deer Lodge's wastewater in the summer could reduce nutri- 
ent levels by 70 percent immediately downstream in the Clark 
Fork. That would reduce algae-related river problems in 90 
or so miles of river In addition, marginal pastureland next to 
the wastewater lagoon would be transformed into lush grass- 
land. Deer Lodge has a great opportunity to develop a far- 
sighted solution for wastewater disposal -one that enhances 
the river and its uses while sparing local taxpayers from the 
possibility of having to finance improvements for conventional 
wastewater treatment. 

Gary Ingman, Montana Department of Health 
and Environmental Sciences 



B. 




►race Parting, execu- 
tive director of Mon- 
tana Trout UnUmited, 
lives near Florence in 
the Bitterrot Valley He 
is an original member 
of the Upper Clark 
Fork Steering Commit- 
tee and a hold-over 
from the group that ne- 
gotiated the 1991 legis- 
lation creating the com- 
mittee Before going to work for Trout Unlimited, Bruce was 
conservation director of the Clark Fork Coalition for six years. 
Prior to that he worked for the U.S. Forest Service for nine 
years, eight years as a wilderness ranger in the Selway-Bitterroot 
Wilderness of Idaho and Montana. He has also been a free- 
lance and staff writer; and labored at a number of odd jobs 
including running printing presses and avoiding getting killed 
when working for a gyppo logger He has a B.S. in geography 
and environmental sciences from the University of Oregon and 
attended graduate school in journalism at the University of 
Montana. Bruce helps edit the Upper Clark Fork Steering Com- 
mittee newsletter 



Upper Clark Fork River Basin 
STEERING COMMITTEE 



r 



Jot Aldegarie 
City of Missoula 
435 Ryman 
Missoula, MT 59802 
523-4601 

Audrey Aspholm 

Former Deer Lodge County 

Commissioner 
400 Elm St 
Anaconda, MT 58711 
563-6949 

Senator Tom Beck 
Senator from Deer Lodge 
651 Greenhouse Rd. 
Deer Lodge, MT 59722 
846-2452 

Stan Bradshaw 
824-9th Ave 
Helena, MT 59601 
443-4171 

Rep. Vivian Brooke 
Representative, District 56 
1610 Madeline Ave 
Missoula, MT 59801 
728-3438 

Jo Brunner 

Montana Water Resources 

Association 
260 10th Lane N.E. 
Power MT 59468 
467-2956 



Jim DiNSMORE 

Granite Conservation District 

PO Box 224 

Hall, MT 59858 

288-3393 

Bruce Farling 
Montana Trout Unlimited 
PO. Box 7186 
Missoula, MT 59807 
543-0054 

Bob Fox 

US EPA Federal BIdg., 

Drawer 10096 

Helena, MT 59626 

449-5432 

Holly Franz 

Montana Power Company 

Gough, Shanahan, et. al. 

PO. Box 1715 

Helena, MT 59624-1715 

442-8560 

Lorraine Gillies 
Rock Creek Advisory 

Council Member 
1609 South 8th West 
Missoula, MT 59801 
543-6067 



Gary Ingman 

Water Quality Bureau 

Department of Health & 

Environmental Sciences 

Helena. MT 59620 

444-2406 

Ronald C. Kelley 
Deer Lodge Valley Water User 
350 Greenhouse Rd. 
Deerlodge, MT 59722 
846-2300 (W) -3825(H) 

Land Lindbergh 
Big Blackfoot River 
235 Woodworth Rd. 
Ovando, MT 59854 
793-5581 

Reed Lommen 

Washington Water Power Company 

PO. Box 3727 

Spokane, WA 99220 

(509) 482-4783 

Eugene Manley 
Flint Creek Valley 
RO. Box 15 
Hall. MT 59837 
288-3409 



Curt Martin 

Montana Department of Natural 

tesources & Conservation 

PO. Box 5004 

Missoula. MT 59806 

721-4284 

Jim C. Quigley 

Little Blackfoot Rancher 

Sunset Ranch 

Box 256 

Avon, MT 59713 

492-6542 

Sandy Stash 

ARCO 

307E. ftTrkSt.#400 

Anaconda, MT 59711-2389 . 

563-5211 

Ole Ueland 

Silverbow Rancher 

R.R3 

Silver Bow, MT 59750 

782-6190 

Dennis Workman 

Montana Department of Fish, 

Wildlife & ftirks 

3201 Spurgin Road 

Missoula. MT 59801 

542-5500 

Gerald Mueller 

Facilitator 

7165 Old Grant Creek Road 

Missoula. MT 59802 

543-0026 



c 



2,400 co^i of (his nnvsldter were printed at an estimated cost 0/26* each. 



NORTHERN LIGHTS INSTITUTE 
Clark Fork Steering Committee 
PO. Box 8084 
Missoula, MT 59807-8084 



Non-Profit Organization 

U.S. Postage 

PAID 

Missoula. MT 59801 
Permit # 74 



HftROLD L. CHAMBERS 
MONTANA STATE LIBRARY 
1515 E. SIXTH AVENUE 
HELENA, MT 596e(ZI 



c 



THE UPPER CLARK FORK 



Montana State Ubraty 



^ 



3 0864 1004 5771 5 



Water News 



VOLUME! NUMBER 4 
AUGUST 1994 



Draft Plan 
Released 



Th 



. he draft version of the Upper Clark Fork River Basin 
Water Management Plan has been released. This fourth issue 
contains the summary of the recommendations from the 
plan and a schedule and location of the seven public hear- 
ings which the Upper Clark Fork River Basin Steering Com- 
mittee will hold to solicit the reaction of the people of the 
basin to it. 

The summary of the work plan on page 3 describes the 
schedule for the Steering Committee's remaining activities 
leading to the presentation of the final water management 
plan to the governor and legislature by the end of this year 

Copies of the full draft plan are available at the follow- 
ing locations. Single copies can also be requested by return- 
ing the mail-in form. 

Anaconda Public Library 

Butte Public Library 

Deer Lodge Public Library 

Helena Public Library 

Lubrecht Forestry Center 

Missoula Public Library 

Montana State Library 

Montana Water Center at MSU 

Granite, Deer Lodge, Lewis & Clark, Missoula, Powell, 
and Silverbow County Extension Offices 

North Powell Conservation District 

Lewis & Clark Conservation District 

Granite Conservation District 

Deer Lodge Valley Conservation District 

Missoula County Conservation District 

DraetPlan 
Recommendation 
Summary 



Th 



he Upper Clark Fork River Basin Steering Committee is 
charged by state statute with writing and presenting to the 
governor and legislature a comprehensive water management 
plan that: 



Mis$oul 




JST/ITF DCCU;, 

SEP 30 

MONTANA STATE LIBRARY 

1515 E. 6th AVE. 
HELENA, MONTANA 59620 

(a) considers and balances all beneficial uses of the water 
in the Upper Clark Fork River basin; 

Qd) includes a description of the standards appfied, the data 
relied upon, and the methodology used in preparing the plan; 

(c) contains recommendations regarding the Upper Clark 
Fork River basin closure as provided in 85-2-336; 

(d) identifies and make recommendations regarding the 
resolution of water-related issues in the Upper Clark Fork River 
basin; and 

(e) includes the Blackfoot River; designated as subbasin 76F, 
and Rock Creek, designated as subbasin 76E, in any considera- 
tions made under subsections (a) through (d). 

The Steering Committee has completed and released a 
draft management plan for public comment. The following 
summarizes the recommendations found in Section 1 of the 
draft management plan. 

A. BASIN CLOSURE 

The legislature should close the Upper Clark Fork River Basin 
to the issuance of most new surface and ground water use per- 
mits. The area closed should include the entire Clark Fork 
and Blackfoot River drainages above Milltown Dam. The clo- 
sure is not intended to affect water uses that do not require 
a water permit It should be conditioned so that it would not 
preempt new permits for the development of: 

1) Storage for beneficial uses; 

2) Stock water; 



r^ 










3) Uses determined to be non-consumptive; and 

4) Superfund remedies, except for dilution, required by the 
US. Environmental Protection Agency for Superfiind sites des- 
ignated as of January 1, 1994. 

The exemption for Superfund remedies should expire after 
five years on January 1, 2000, so that applications for new water 
rights f)ermits for this purpose would have to have been filed 
on or before December 31, 1999. 

A "non-consumptive use" means a beneficial use of water 
that does not cause a reduction in the source of supply because 
substantially all of the water returns without delay to the source 
of supply, causing litrie or no disruption in stream conditions. 

Concerning ground water use, existing law does not require 
a permit for a well producing water at less than 35 gallons 
per minute not to exceed a total volume of 10 acre-feet per 
year This proposal would not change this situation so that 
wells under this production limit could continue to be drilled 
for any purpose 

It should also be noted that including ground water in the 
closure as proposed would not allow city and towns to obtain 
a permit for new wells for drinking water or other municipal 
uses. Municipalities will still be able to purchase or condemn 
existing water rights to expand domestic water supplies. 

The closure and the exemptions will be reviewed by the 
ongoing basin-wide committee after five years, and necessary 
changes will be recommended to the legislature The closure 
can be modified, extended, or ended by action of the legislature 
after the review. 

B. ONGOING WATER AND PLANNING AND 
MANAGEMENT MECHANISM 

The legislature should provide for an ongoing basin water 
planning and management mechanism including a basin-wide 
committee and watershed committees. The mechanism should 
not be vested with legal authority to compel any action by 
any water user or water interest. Its purposes should, instead, 
include: 

1) Providing a forum for all interests to communicate about 
water issues; 

2) Providing education about water law and water manage- 
ment issues; 

3) Identifying short-term and long-term water management 
issues and problems and alternatives for resolving them; 

4) Facilitating resolution of water related disputes via con- 
sensus-based collaborative processes including mediation; 

5) Providing coordination with other basin management and 
planning efforts, such as county drought committees and the 
Tri-State Section 525 Water Quality Implementation Council; 

6) Advising the government agencies about water manage- 
ment and permitting activities; 

7) Consulting with the basin's local governments; and 

8) Reporting periodically to some entity with water manage- 
ment authority such as the legislature 

For the first two years the members of the basin-wide com- 
mittee will be appointed by the Director of the Department 
of Natural Resources and Conservation. Members will include 
representatives of the following local basin water interests: 
agriculture organizations; conservation districts; environmen- 
tal or^nizations; industries; local, state, and federal govern- 



ments; reservation appUcants; utilities; and water user organiza- 
tions. The ongoing basin-wide committee will recommend 
modifications of the selection process to the 1997 Legislature 
if another method is identified that better ensures local input 
to member selection while maintaining the broad range of 
member representation of basin water users. The basin-wide 
committee will continue to decide the membership of water- 
shed committees. 

C. PROTECTION OF EXISTING WATER RIGHTS 

Any action taken by the legislature or any executive branch 
agency in response to this plan must be predicated on preserv- 
ing existing water rights. 

D. WATER ADJUDICATION SYSTEM 

The Montana Reserved Water Rights Compact Commission 
should make the U.S. Forest Service a high priority among the 
federal agencies in actively negotiating a reserved water rights 
compact. Further; if the commission takes a geographical ap- 
proach to the Forest Service's reserved water rights claims, the 
Rock Creek drainage should be studied as a test case of a basin 
where Forest Service claims are downstream of state-based 
private water rights claims. 

E. WATER STORAGE 

1. Structural Storage 

The ongoing basin water planning and management mecha- 
nism will continue the investigations of the priority new and 
expanded existing water storage sites identified in the Upper 
Clark Fork River Basin Steering Committee study of possible 
increases of water storage in the basin. In particulai; it will iden- 
tify the potential beneficiaries of and a fianding mechanism 
for these priority sites. 

The Steering Committee was unable to consider and make 
recommendations concerning the existing Geotgetown-Storm- 
Silver Lake system because ownership of the taciUties and water 
rights associated with it were clouded by litigation. When this 
litigation is resolved, this system should be studied to deter- 
mine if it contains unused storage capacity that might benefit 
basin water users. 

The ongoing basin water planning and management mecha- 
nism should also create some means to examine additional 
storage options in the basin as they arise 

2. Non-Structural Storage 

The ongoing basin water planning and management mecha- 
nism will continue to support the Flint Creek remm flow study 
so that water users in the watershed can better understand and 
manage retum flows to benefit in-stream and diversionary water 
uses. The ongoing mechanism should promote similar studies 
of the role of retum flows in watersheds throughout the basin. 

E WATER QUALITY 

1. Toxic Metals and Stream Dewatering 

ProfK)sed new storage or other management activities that 
could change the flow regime in the Clark Fork River must 
incorporate careful consideration of impacts on water quality 
and, particularly toxic metal concentrations. 

2. Nutrient Pollution 

The ongoing basin planning and management mechanism 
will: 



Upper Clark Fork River Basin 
Steering Committee Work Plan 

when Are Things Happening? 

X he Steering Committee has adopted a work plan and time- progress to date towards completion of the management plan, 

line to guide the preparation of the water management plan. While all Steering Committee meetings are open to the public. 

The following table which will be updated and included in some activities depend directly on the involvement of upper 

subsequent issues of The Oark Fork Water News summarizes the Clark Fork water users. These activities are printed in bold italics. 

ACTIVITY DURATION DATES STATUS 

1. Develop Work Plan 4 months Sept. 1992-Jan. 1993 Complete 

2. Steering Committee & Water Shed Committee 
Deliberations on Management Plan 

A. Form & Activate Water Shed Committees 

B. Water Shed Committee Deliberations 



1.5 years 


Jan. 1993-June 1994 


Ongoing 


3 months 


Jan.-March 1993 


Complete 


1 year 


March 1993-March 1994 


Ongoing 


3 months 


April-June 1994 


Complete 





C. Complete Steering Committee Deliberations 
on Draft Management Plan 


3 months 


April-June 1994 


Complete 


3. Prepare Draft Management Plan 


2 months 


July-Aug. 1994 


Complete 




4. Public Comment Period on the Draft Management 
Plan, Including Public Hearings 


8 weeks 


Sept. 5-Oct. .28, 1994 




1 


5. Prepare Final Management Plan and Any Necessary 
Implementing Legislation 


6 weeks 


Oct. 31-Dec. 9, 1994 






6. BNRC and DNRC Review of Final Management Plan 


2 weeks 


Nov 28-Dec. 9, 1994 






7. Print Final Management Plan 


3 weeks 


Dec. 12-30, 1994 






8. Present Final Management Plan to Govemoi; 
Legislature and the Pubhc 




Dec. 31, 1994 





Draft Hearing Schedule 

T 

J. he Steering Committee has scheduled hearings in seven draft water management plan. Each of the seven will be held 
basin communities to obtain the public's response to the at 7:00pm. 



DAY & DATE 


LOCATION 


Tuesday, September 27 


Drummond Community Hall 


Wednesday, September 28 


Deer Lodge Community Center 


Tuesday, October 4 


Granite County Museum, Philipsburg 


Wednesday, October 5 


ARCO Conference Center, 307 East Park St., Anaconda 


Thursday, October 6 


Avon Community Center 


Tuesday, October 11 


Lubrecht Forestry Station, Greenough 


Wednesday, October 12 


Missoula City Library Conference Room, Missoula 



c 



c 



a. Encourage and assist other basin communities that have 
not already done so to ban the sale of phosphate detergents; 

h Continue to encourage and assist the City of Deer Lodge, the 
National Park Service, and the Department of Health and Envi- 
ronmental Sciences in implementing a project to use the effluent 
from the Deer Lodge Sewage Treatment Plant to irrigate near- 
by land rather than discharge it to the Clark Fork River; 

c. Encourage other basin communities such as Butte, Galen, 
Wkrm Springs, Drummond, and Missoula to evaluate alternatives 
to direct discharge of their municipal waste water; and 

d. Encourage Department of Natural Resources and Conser- 
vation to resolve water rights questions surrounding land ap- 
plication of sewage treatment plant effluent. 

3. Non-Point Pollution Strategy 

The ongoing basin planning and management mechanism 
will continue to encourage upper Clark Fork basin watershed 
committees to prarticipate in the development of voluntary, local 
non-point pollution control strategies and will provide assis- 
tance when requested and able to do so. 

G. FISHERY 

The ongoing basin planning and management mechanism 
will continue to provide a communications link through which 
the Department of Fish, Wildlife, and Parks (DFWP) and will- 
ing landowners can discuss the oppormnities for leasing watei; 
for cooperative storage projects, for implementing the trial in- 
stream flow program oudined in this plan, or for otherwise 
arranging to relieve dewatered stream sections. DFWP should 
continue to seek willing landowners to help solve dewatering 
problems to improve stream habitat improvement on private 
land. It will also continue to utilize River Restoration Program 
funds (earmarked fishing license revenue) and fish kill mitiga- 
tion money (ARCO settlement in 1989 fish kill) to fund habitat 
improvement projects on private land. 



H. IN-STREAM FLOW PILOT STUDY 

The legislature should authorize a ten year in-stream flow 
pilot study in the Upf)er Clark Fork River Basin. The study 
will test allowing a public or private entity to purchase, lease, 
or receive by donation an existing water right from a willing 
seller; convert it to an in-stream right through the water rights 
change process, and then protect it against appropriation by 
junior users. To obtain and protect an instream right in a spe- 
cific stream reach, an entity would be required to proceed 
through the water rights change process and demonstrate that 
no other water right holder would be adversely affected by the 
change The pilot study will have a termination date 

The legislature should change state law so that the cost of 
objecting by prevailing parties in afl water rights change proc- 
esses will be paid by the nonprevailing party. 

I. WATER RESERVATIONS 

The legislature should continue the current suspension of 
Granite Conservation District's (GCD) and the Department of 
Fish, Wildlife and Park's (DFWP) reservation appUcations dur- 
ing the period of the proposed basin closure The May 1, 1991, 
priority date for these applications previously established by 
the legislamre should remain intact during this period. If a 
fumre basin closure review recommends either that the closure 
be terminated or that the exemptions be significantly modified, 
GCD and DFWP should retain the right to renew their reser- 
vation applications at the end of the closure period without 
loss of the May 1, 1991 priority date Their renewals could in- 
clude modification to their original applications if warranted 
by changed circumstances without loss of the May 1, 1991, 
priority date so long as the water quantity to be reserved does 
not exceed the amount in the original reservation applications 
and the location of the water to be reserved is not changed 
from the original application. 



We Hope to Hear From You! 

lease send your comments, criticisms, or suggestions concerning the draft plan recommendations to; 

Upper Clark Fork River Basin Steering Committee 

c/o Gerald Mueller 
7165 Old Grant Creek Road, Missoula, MT 59802 

Single copies of the draft water management plan can be obtained by sending 
the following form to the Steering Committee at the same address: 



Name 



Street Address 
City/State/Zip 



Upper Clark Fork River Basin 
STEERING COMMITTEE 



Joe Aldegarie 
City of Missoula 
435 Ryman 
Missoula, MT 59802 
523-4601 

Audrey Aspholm 

Former Deer Lodge County 

Commissioner 
400 Elm St 
Anaconda, MT 58711 
563-6949 

Senator Tom Beck 
Senator from Deer Lodge 
651 Greenhouse Rd 
Deer Lodge, MT 59722 
846-2452 

Stan Bradshaw 
824-9th Ave. 
Helena, MT 59601 
443-4171 

Rep. Vivian Brooke 
Representative, District 56 
1610 Madeline Ave. 
Missoula, MT 59801 
728-3438 

Jo Brunner 

Montana Water Resources 

Association 
260 10th Lane N.E. 
fower, MT 59468 
467-2956 



Jim Dinsmore 

Granite Conservation District 

PO. Box 224 

Hall, MT 59858 

288-3393 

Bruce Farling 
Montana Trout Unlimited 
RO. Box 7186 
Missoula, MT 59807 
543-0054 

Bob Fox 

US EPA Federal Bldg., 

Drawer 10096 

Helena, MT 59626 

449-5432 

Holly Franz 

Montana Power Company 

Gough, Shanahan, et. al 

RO. Box 1715 

Helena, MT 59624-1715 

442-8560 

Lorraine Gillies 
Rock Creek Advisory 

Council Member 
1609 South 8th West 
Missoula, MT 59801 
543-6067 



Gary Ingman 

Water Quality Bureau 

Department of Health & 

Environmental Sciences 

Helena, MT 59620 

444-2406 

Ronald C. Kelley 
Deer Lodge Valley Water User 
350 Greenhouse Rd 
Deerlodge, MT 59722 
846-2300 (W) -3825(H) 

Land Undbergh 
Star Rte., Box 337 
Greenough, MT 59836 
793-5581 

Reed Lommen 

Washington Water Power Company 

RO. Box 3727 

Spokane, WA 99220 

(509) 482-4783 

Eugene Manley 
Flint Creek Valley 
15 Willow Tree Ln. 
Hall, MT 59837 
288-3409 



Curt Marhn 

Montana Department of Nanjral 

Resources & Conservation 

PO. Box 5004 

Missoula, MT 59806 

721-4284 

Jim C Quigley 

Little Blackfoot Rancher 

Sunset Ranch 

Box 256 

Avon, MT 59713 

492-6542 

Sandy Stash 

ARCO 

307 E. Park St. #400 

Anaconda, MT 59711-2389 

563-5211 

Ole Ueland 

Silverbow Rancher 

RR3 

Silver Bow, MT 59750 

782-6190 

Dennis Workman 

Montana Department of Fish, 

Wildlife & Parks 

3201 Spurgin Road 

Missoula, MT 59801 

542-5500 

Gerald Mueller 

Facilitator 

7165 Old Grant Creek Road 

Missoula, MT 59802 

543-0026 



L' 



2,400 copies of this newsletter were printed at an estimated cost oJ26i each. 



NORTHERN LIGHTS INSTITUTE 
Clark Fork Steering Committee 
PO. Box 8084 
Missoula, MT 59807-8084 



Non-Profit Oi^nization 

U.S. Postage 
PAID 

Missoula, MT 59801 
Ftrmit # 74 



HftROLD L. CHAMBERS 
MONTANA STATE LIBRARY 
1515 E. SIXTH AVENUE 
HELENA, MT SSfeS® 



c 



3 

Hih uUuJ 

^' THE UPPER CLARK FORK 



Montana Slate Library 



3 0864 1004 5772 3 



Water News 



STATE DOCUMENTS COLLECTION 

FEB 1 "^ 1995 

ONT^(rl»KSTATE LIBRARY 

1515 Er>^h AVE. 

HELENA, MONTANA 59620 



FEBRUARY 1995 
NUMBER 5 



River Plan 
Released 



Ihe 



-he Upjjer Clark Fork River Basin Steering Committee has 
submitted to Governor Racicot and the Montana Legislature 
the Upper Clark Fork River Basin Water Management Plan. This 
fifth edition of the newsletter contains a summary of the rec- 
ommendations included in that recendy submitted manage- 
ment plan. Legislation which would implement the plan will 
be considered by the current session of the Montana Legisla- 
ture This newsletter edition also summarizes the public in- 
volvement in creating the draft plan which led to the adoption 
of the management plan by the Steering Committee 

In its cover letter to the Governor and Legislators, the Steer- 
)ing Committee wrote that this plan: 

... is the culmination of over three years of a successful effort 
to listen to, understand, and accommodate the diverse interests 
of the basin's water users. This plan does not resolve all of the 
basin's water issues. But it is an important start at water plan- 
ning and management at the local basin level. After three years 
and completion of the first plan, the Steering Committee re- 
mains convinced that water planning and management at the 
local basin level is necessary to secure both the economy and 
quahty of life that we want for ourselves and our children. 

Copies of the full plan are available at the following loca- 
tions. Single copies can also be requested by returning the mail- 
in insert found inside 

Anaconda Public Library 

Butte Public Library 

Deer Lodge Public Library 

Helena Public Library 

Lubrecht Forestry Center 

Missoula Public Library 

Montana State Library 

Montana Water Center at MSU 

Granite, Deer Lodge, l^ewis & Clark, Missoula, Powell, 

and Silverbow County Extension Offices 
North Powell Conservation District 
Lewis & Clark Conservation District 
Granite Conservation District 
Deer Lodge Valley Conservation District 
Missoula County Conservation District 



M><$oul 




Upper Clark Fork River Basin 
Water Management Plan 

Recommendation Summary 



A. Basin Closure 

The legislature should close the upper Clark Fork River 
Basin to the issuance of most new surface and ground water 
use permits and reservations. The area closed should include 
the entire Clark Fork and Blackfoot River drainages above 
Milltown Dam. The closure is not intended to affect water uses 
that do not require a water permit. It should be conditioned 
so that it would not preempt new permits for the develop- 
ment of: 

1) Storage for beneficial uses; 

2) Stock water; 

3) Ground water for domestic use; 

4) Expansion of zero-consumptive hydropwwer generation 
at existing projects; and 

5) Superfund remedies, except for dilution, required by the 
U.S. Environmental Protection Agency for Superfijnd sites 
designated as of January 1, 1994. 

"Domestic use" means use of water common to family 
homes, including use for culinary purposes, washing, drink- 
ing water for humans and domestic pets, and irrigation of a 
lawn or garden of less than 1 acre, not to exceed a total of 






itiWt 



r\L 



I i 



i ^ 



3.5 acre-feet per year The term includes municipal uses for 
expanded domestic use but does not include commercial or 
industrial use 

The exemption for Superfund remedies should expire after 
five years on January 1, 2000, so that applications for new water 
rights permits for this purpose would have to have been filed 
on or before December 31, 1999. 

The closure and the exemptions will be reviewed by the 
ongoing basin-wide committee every five years, and necessary 
changes will be recommended to the legislature. The closure 
can be modified or ended by action of the legislature after the 
review. 

B. Ongoing Water Planning and 
Management Mechanism 

The legislature should provide for an ongoing basin water 
planning and management mechanism including a basin-wide 
committee and watershed committees. The mechanism should 
not be vested with legal authority to compel any action by any 
water user or water interest. Its purposes should, instead, 
include: 

1) Providing a forum for all interests to communicate about 
water issues; 

2) Providing education about water law and water manage- 
ment issues; 

3) Identifying shon-term and long-term water management 
issues and problems and alternatives for resolving them; 

4) Facilitating resolution of water related disputes via con- 
sensus-based collaborative processes including mediation; 

5) Providing coordination with other basin management and 
planning efforts, such as county drought committees and 
the TriState Section 525 Water Quality Implementation 
Council; 

6) Advising the government agencies about water manage- 
ment and permitting activities; 

7) Consulting v^ith the basin's local governments; and 

8) Reporting periodically to some entity with water man- 
agement authority such as the legislature 

For the first two years the members of the basin-wide com- 
mittee will be appointed by the Director of the Department 
of Natural Resources and Conservation. Members will include 
representatives of the following local basin water interests: 
agriculture organizations; conservation districts; environmen- 
tal organizations; industries; local, state, and federal govern- 
ments; reservation applicants; utilities; and water user oi^niza- 
tions. The ongoing basin-wide committee will recommend 
modifications of the selection process to the 1997 Legislature 
if another method is identified that better ensures local input 
to member selection while maintaining the broad range of 
member representation of basin water users. The basin-wide 
committee will continue to decide the membership of water- 
shed committees. 

C. Protection of Existing water rights 

Any action taken by the legislature or any executive branch 
agency in response to this plan must be predicated on preserv- 
ing existing water rights, permits and certificates in effect as 
of July 1, 1995. 

D. Water Adjudication System 

The Montana Reserved Water Rights Compact Commission 



should make the U.S. Forest Service a high priority among the 
federal agencies in actively negotiating a reserved water rights 
compact. Further if the commission takes a geographical ap- ^ 
proach to the Forest Service's reserved water rights claims, the | t 
Rock Creek drainage should be studied as a test case of a basin 
where Forest Service claims are downstream of state-based pri- 
vate water rights claims. 



E. Water Storage 

L Structural Storage 

The ongoing basin-wide committee will continue the inves- 
tigations of the priority new and expanded existing water 
storage sites identified in the Upper Clark Fork River Basin 
Steering Committee study of possible increases of multiple use 
water storage in the basin. In particular; it will identify the 
potential beneficiaries of and a funding mechanism for these 
priority sites. 

The Steering Committee was unable to consider and make 
recommendations concerning the existing Georgetown-Storm- 
Silver Lake system because ownership of the facilities and water 
rights associated with it were clouded by litigation. When this 
litigation is resolved, this system should be studied to deter- 
mine if it contains unused storage capacity that might benefit 
basin water users. 

The ongoing basin-wide committee should also create some 
means to examine additional storage options in the basin as 
they arise 

2. Nonstructural Storage 

The ongoing basin-wide committee should continue to sup- 
port the Flint Creek return flow study to permit better under- 
standing and management of return flows to benefit in-stream 
and diversionary water uses. The ongoing mechanism should 
promote similar studies of the role of return flows in water- 
sheds throughout the basin. 



CI 



E Water Quality 

1. Toxic Metals and Stream Dewatering 

Proposed new storage or other management activities that 
could change the flow regime in the Clark Fork River must 
incorporate careful consideration of impacts on water quality 
and, particularly, toxic metal concentrations. 

2. Nutrient Pollution 

The ongoing basin planning and management mechanism will: 

a. Encourage and assist other basin communities that have 
not already done so to ban the sale of phosphate detergents; 

b. Continue to encourage and assist the City of Deer Lodge 
the National Park Service and the Department of Health 
and Environmental Sciences (DHES) in implementing a 
land application project, and encourage other communi- 
ties such as Butte Galen, Warm Springs, Drummond, Phil- 
ipsburg, and Missoula to evaluate alternatives to direct 
discharge of their municipal waste water; and 

c. Encourage Department of Natural Resources and Conser- 
vation (DNRC) to resolve water rights questions surround- 
ing land application. 

3. Non-Point Pollution Strategy 

The ongoing basin-wide planning and management commit- 
tee will continue to encourage upper Clark Fork Basin water- 
shed committees to participate in the development of volun- | 
tary, local non-point pollution control strategies and will pro- I 
vide assistance when requested and able to do so. 



G. Fishery 

The ongoing basin-wide committee and watershed commit- 
tees will continue to provide a communications link through 
which the Department of Fish, Wildlife, and Parks (DFWP) and 
willing landowners can discuss the opportunities for leasing 
watei; for coof>erative storage projects, for implementing the trial 
in-stream flow program outlined in this plan, or for otherwise 
arranging to relieve dewatered stream sections. The DFWP 
should continue to seek willing landowners to help solve 
dewatering problems to improve stream habitat on private land. 
It will also continue to utilize River Restoration Program funds 
(earmarked fishing license revenue) and fish kill mitigation 
money (ARCO settlement in 1989 fish kill) to fund habitat im- 
provement projects on private land. 

H. In-Stream Flow Pilot Study 

The legislature should authorize a ten year in-stream flow 
pilot study in the upper Clark Fork River Basin. The study will 
test allowing a public or private entity to lease an existing water 
right for instream flows from a willing lessoi; or allowing an 
existing right holder to convert an existing right to an in-stream 
use, and then protect the lease or convei-sion against appropria- 
tion by junior users for the period of the study. To obtain and 
protect a lease for in- stream flows or to convert an existing right 
to an in-stream use in a specific stream reach, an entity would 
be required to proceed through the water rights change proc- 



ess and demonstrate that no other water right holder would 
be adversely affected by the lease or conversion. The pilot study 
will have a termination date 

The legislature should change state law so that the cost of 
objecting by prevailing parties in all water rights change proc- 
esses will be paid by the non-prevailing party. 

I. Water Reservations 

The legislature should continue the current suspension of 
Granite Conservation District's (GCD) and the Depanment of 
Fish, Wildlife and Park's (DFWP) reservation applications un- 
til such time as the basin closure is significantly modified or 
terminated. The May 1, 1991 priority date for these applications 
previously established by the legislature should remain intact 
during this period. If a future basin closure review recommends 
either that the closure be terminated or that the exemptions 
be significantly modified, the GCD and DFWP should retain 
the right to renew their reservation applications at the end of 
the closure period without loss of the May 1, 1991 priority date 
Their renewals could include modification to their original ap- 
plications if warranted by changed circumstances without loss 
of the May 1, 1991 priority date so long as the water quantity 
to be reserved does not exceed the amount in the original reser- 
vation applications and the location of the water to be reserved 
is not changed from the original application. 



Draft Pij\n Public Involvement 



T. 



. he Steering Committee adopted the management plan 
after extensive outreach to the basin's water users. Public 
meetings were held in seven basin communities, Drum- 
mond. Deer Lodge, Anaconda, Philipsburg, Avon, Greenough, 
and Missoula, to introduce the public to the draft plan and 
to receive their comments on it. Attendance at the meetings 
is summarized in the table below: 



A total of 178 public comments were recorded on news- 
print at the meeting. In addition, the Steering Committee 
received 58 written comments on the draft plan from the 
public after the meetings. 

Each Steering Committee member received a complete set 
of the comments recorded at the public meeungs as well 
as the subsequent written comments. 







MEETING 


ATTENDANCE 




LOCATION 


PUBLIC 


STEERING COMMITTEE 


TOTAL 


Drummond 


37 




10 


47 


Deer Lodge 


33 




15 


48 


Philipsburg 


21 




9 


30 


Anaconda 


31 




9 


40 


Avon 


13 




8 


21 


Greenough 


26 




7 


33 


Missoula 


52 




12 


64 


Totals 


213 




70 


283 



Upper Clark Fork River Basin 
STEERING COMMITTEE 



Joe Aldegarie 
City of Missoula 
435 Ryman 
Missoula, MT 59802 
523-4601 

Audrey Aspholm 

Former Deer Lodge County 

Commissioner 
400 Elm St, 
Anaconda, MT 58711 
563-6949 

Senafor Tom Beck 
Senator from Deer Lodge 
651 Greenhouse Rd 
Deer Lodge, MT 59722 
846-2452 

Stan Bradshaw 
824-9th Ave. 
Helena, MT 59601 
443-4171 

Senator Vivian Brooke 
Senator from Missoula 
1610 Madeline Ave 
Missoula, MT 59801 
728-3438 

Jo Brunner 
260 10th Lane NE 
Itower, MT 59469 
467-2956 



Jim Dinsmore 

Granite Conservation District 

RQ Box 224 

Hall, MT 59858 

288-3393 

Bruce Farlinc 
Montana Trout Unlimited 
RO. Box 7186 
Missoula, MT 59807 
543-0054 



US EPA Federal Bldg., 
Drawer 10096 
Helena, MT 59626 
449-5432 

Holly Franz 

Montana Power Company 

Gou^, Shanahan, et. al. 

RQ Box 1715 

Helena, MT 59624-1715 

442-8560 

Steve Fry 

Washington Water Power 

Company 
PO. Box 3727 
Spokane, WA 99220 
(509)482-4783 



Lorraine Gillies 
Rock Creek Advisory 

Council Member 
1609 South 8th West 
Missoula, MT 59801 
543-6067 

Gary Ingman 

Water Quality Bureau 

Department of Health & 

Environmental Sciences 

Helena, MT 59620 

444-2406 

Ronald C Kelley 
Deer Lodge Valley Water User 
350 Greenhouse Rd 
Deerlodge, MT 59722 
846-2300 (W) -3825(H) 

Land Lindbergh 
Star Rte., Box 337 
Greenough, MT 59836 
244-5599 

Eugene Manley 
Flint Creek Valley 
15 Willow Tree Ln 
Hall, MT 59837 
288-3409 



Curt Martin 

Montana Department of Natural 

Resources & Conservation 

PO. Box 5004 

Missoula, MT 59806 

721-4284 

Jim C. Quigley 

Little Blackfoot Rancher 

Sunset Ranch 

Box 256 

Avon, MT 59713 

492-6542 

Sandy Stash 

ARCO 

307 E. tok St. #400 

Anaconda, MT 59711-2389 

563-5211 

Ole Ueland 

Silverbow Rancher 

R.R3 

Silver Bow, MT 59750 

782-6190 

Dennis Workman 

Montana Department of Fish, 

Wildlife & ftirks 

3201 Spurgin Road 

Missoula, MT 59801 

542-5500 

Gerald Mueller 

Facililator 

7165 Old Grant Creek Road 

MissouU, MT 59802 

543-0026 



NORTHERN Lights Institute 

CiARK Fork Steering Committee 

PO. Box 8084 

Missoula, MT 59807-8084 



Non-Profit Organization 

US. Postage 

PAID 

Missoula, MT 59801 
Permit # 74 



HfiROLD L. CHAMBERS 
MONTftNO ST«TE LIBRARY 
1515 E. SIXTH AVENUE 
HELENA MT 596£0 



Montana Stale Library 



3 0864 1004 5773 1 



"33,^/ 

* THE UPPER CLARK FORK 

Water News 



Volume 2 Number 1 
February 1996 



STATF DOCUMENTS COLLECTION 

FEB 1 4 1996 

MONTANA STATE LIBRARY 

1515 E. 6th AVE. 
HELENA, MONTANA 59620 



X L i 



In This Issue 



In December 1994, the Upper Clark Fork River Basin Steering 
Committee completed and sent to Governor Racicot and the 
Legislature the Upper Clark Fork River Basin Water Management 
Plan. This issue reports on the Legislatures response to the Plan, 
the reappointment of the Steering Committee, and the Steering 
Committee's proposed 1995-96 work plan to carry out the Plan's 
recommendations and its legislative mandate. It also introduces 
the basin's in-stream flow water leasing pilot program and con- 
siders the connection between water quality and quantity. 



Montana Legislature 

Adopts Plan 

Recommendations 



Th 



he 54th Session of the Montana Legislature responded positively 
to the recommendations in the Upper Clark Fork River Basin Water 
Management Plan published in December 1994. Almost all of the 
recommendations requiring legislative action were enacted into 
law in Senate Bill 144. Key provisions of SB. 144 addressed: 

Basin Water Rights Closure: The upper basin, including the Ckrk 
Fork mainstem from its headwaters to the Milltown Dam and the 
Little Blackfoot, Flint Creek, Rock Creek, and Blackfoot water- 
sheds, was closed to the issuance of most new surface water rights. 
Specific water uses were exempted from the closure. New water 
rights can still be obtained for appropriations of ground water, 
limited Superfund remedies, stock water, water storage, and new 
power generation at existing dams provided that no additional 
water is consumed. Existing water rights are not affected by the 
closure. The closure has no ending date, but the Upper Clark 
Fork Steering Committee must review the closure at least every 
five years and recommend necessary changes to the legislature. 

Reauthorization of the Steering Committee: The DNRC Direc- 
tor was authorized to reappoint the members of the Steering Com- 
mittee (see article below). The Steering Committee was directed to: 



D Make recommendations to the 1997 legislature concerning the 
representation, terms, and the method of appointing Steering 
Committee members; 

D Prepare and submit a report evaluating the Upper Clark Fork 
River basin instream flow pilot program; 

D Prepare and submit a report concemmg the relationship between 
surface water and ground water and the cumulative impacts of 
ground water withdrawals from each subbasin; 

D Provide a forum for all interests to communicate about water 
issues; 

n Provide education about water law and water management issues; 

D Identify short-term and long-term water management issues and 
problems and alternatives for resolving them 

n Identify the potential beneficiaries of and a funding mechanism 
for new and expanded water storage sites; 

n Assist in facilitating resolution of water related disputes; 

D Provide coordination with other basin management and plan- 
ning efforts; 

D Advise government agencies about water management and 
permitting activities; 

D Consult with the basins local governments; and 

D Report periodically to some entity with water management 
authority such as the legislature. 

Instream Flow Pilot Study: A ten year pilot smdy was authorized 
in the upper Clark Fork River Basin that allows anyone to lease water 
or any existing water right holder to temporarily change his or her 
water right to maintain and enhance streamflows to benefit the basin's 
fishery resource. The state district court is directed to award legal 
fees to the prevailing party in a water right or change hearing before 
the court regarding upper Clark Fork River Basin vrater rights. 

Water Reservations: The suspension of the water reservation proc- 
ess enacted by the 1993 Legislature was continued indefinitely 
Applications for water reservations in the upper Clark Fork Basin 
may not be processed or approved. Granite Conservation District 
and the Montana Department of Fish, Wildlife and Parks maintain 
a reservation priority date of May 1, 1991 in the event that the 
suspension is lifted. 



Steering Committee 

1995-1996WorkPlan 



C 



1 he Upper Clark Fork River Basm Water Management Plan set forth 
two goals: (1) To balance all of the basin's beneficial water uses; 
and (2) To provide for continued planning and management of 
the waters of the upper Clark Fork River Basin rooted 



at the local level. To accomplish these goals and its legislative, the 
Steering Committee has developed the following work plan to 
guide its activities through the end of next year 



Task 



Implementor 
Steering Committee 
Steering Committee 



Schedule 



1. Adopt Steering Committee ground rules 

2. Adopt a work plan 



3. Educate Steering Committee and basin about water law 
and basin hydrology, water uses and management 
systems, using the following mechanisms or steps: 

a. The Upper Clark Fork Water News; 

b. Compile on-going education activities and resources; 

c. Know your watershed meetings conducted jointly 
with the Montana Water Course; and 

d. Seminar and newsletter article on water rights 
for realtors. 

4 Design and implement groundwater study 

5. Continue storage studies and develop a storage funding 
mechanism through a storage committee and the water- 
shed committees. 

6. Improve water management during water short years, 
i.e. identify where water is needed, sources of water, and 
an allocation mechanism or mechanisms. 

7. Conduct site specific water projects, e.g. Deer Lodge 
sewage efiluent land application project, Butte area water 
quantity and quality and water use/land use interface 
projects, &r water leasing opportunities. 

8. Develop a model process for instream (low leases. 



9. Water simation inventory- problems and opportunities 
in each watershed. 

10. Prepare report on future org9ni2ation and funding of the 
Steering Committee. 

11. Updates &r information exchange concerning: nutrient 
controls, Seven-up Pete mine, Superfund 6ar voluntary 
cleanup activities. 

12. Review basin water rights administration and 
adjudication. 

13. Consult with basin local governments 

14. Respond to requests for consultations with other basins 

15. Develop consensus legislative recommendations. 



Finalize by December 1995 

Completed draft by December 1995; 
review in Watershed Steering 
Committees by February 1996 

On-going 



Steering Committee 
Newsletter Committee 
Steering Committee 6i 
Montana Water Course 
Steering Committee 6ir 
Montana Water Course 
Realtor water rights seminary 



c 



Steering Committee 

Steering Committee 
Storage Committee & 
Watershed Committees 

Steering Committee and 
Watershed Committees 



Complete by November 1996 
Complete by November 1996 

Complete by November 1996 



Watershed Committees Ongoing 



Steering Committee Complete by June 1996 
Leasing Subcommittee &r 
Watershed Committees 

Watershed Committees On-going 

Steering Committee Complete by November 1996 

Steering Committee Ongoing 
members 

Steering Committee with Complete by November 1996 
assistance from DNRC 

Steering Committee Ongoing 

Steering Committee Ongoing 

Steering Committee Complete by November 1996 



THE Water Quality- Quantity Connection 



Garylngman 

January 1996 



ihe 



Lhe 1991 Montana Legislature directed the head of the Depart- 
ment of Natural Resources and Conservation to establish the 
Upper Clark Fork Steering Committee. Its charge: develop a water 
management plan that "considers and balances all beneficial uses 
of water in the upper Clark Fork River basin." In 1995, the 
Legislature approved, with some changes, the committee's plan. 
The plan attempts to define current and anticipated beneficial 
uses of water in the basin while also seeking ways to better pro- 
tect and balance competing demands on the resource 

The effort focused primarily on developing alternatives that 
help ensure adequate water remains in-stream during critical 
periods, so that a variety of beneficial uses -from irrigation to 
hydropower to fishery protection - can be supported. The ap- 
proved plan examines opporainities for increasing water storage, 
closes the basin to new water-use applications for surface waters 
and allows water rights to be leased for in-stream flows. 

Though the amount of water in the Clark Fork and its tributaries 
unquestionably influences the ability of the streams to physically 
support beneficial uses, streamflows also significantly effect water 
quality. Sn-eamflows, then, can also dictate whether a stream sup- 
ports beneficial uses that need a certain quality of water The final 
Clark Fork Plan attempts to better recognize this relationship. 

Most surface waters in the upper Clark Fork basin are classified 
"B-1" in the states water quality standards. This means their quality 
must be maintained as suitable for these beneficial uses: drink- 
ing, cooking and food processing after conventional treatment; 
bathing, swimming and recreation; growth and reproduction of 
trout and associated aquatic life; waterfowl and furbearers; and 
agricultural and industrial water supplies. Each use requires 
minimum levels of water quality as well as quantity. The amount 
needed for water quality might not be sustained if adequate 
streamflows are not available during critical times. This is often 
the case in the Clark Fork when seasonal water shortages result 
in violations of water quality standards and impairment of bene- 
ficial uses. 

Below are several ways streamflow volume affects water qual- 
ity and beneficial uses in the upper Clark Fork River 

HEAVY METALS 
Much of the upper river and the headwater tributary Silver 
Bow Creek are seriously polluted with heavy metals fi-om historical 
mining and smelting. Most water uses are at least partially im- 
paired because high levels of copper, zinc, cadmium, lead and 
arsenic can be toxic at certain levels to humans, livestock, wildlife, 
fish and crops. 

The overall severity of the metals pollution in stream miles 
affected, frequency and magnitude is moderated by in-Qows from 
cleaner tributaries. In particular, the Little Blackfoot River, Rock 
Creek and the Big Blackfoot River dilute metals concentrations, 
enhancing water quality downstream in the Clark Fork. In the 
Clark Fork's headwaters, adequate so-eamQows are highly desirable 
from January through April to guarantee adequate dilution of poor- 
quality discharges from the Warm Springs treatment ponds on 



Silver Bow Creek. However, some high flows in the upper river 
can harm water quality by eroding mining tailings that have been 
deposited on streambanks. 

NUTRIENTS 
High concentrations of nitrogen and phosphorus prevail 
throughout much of the upper Clark Fork River These nutrients 
can "fertilize" algae that are attached to the streambottom. High 
algse densities impair uses of the river such as irrigation and 
recreation, and cause violations of state aquatic-life standards for 
dissolved oxygen. Nutrient sources include municipal wastewater 
discharges and runoff from agriculmral and timber lands 

The algae problem is most acute during the optimal growing 
conditions of summer It is compounded by low streamflows, which 
increase water temperature, promote plant growth and reduce the 
effects of dilution. There is a direct relationship between declining 
summer streamflows and increasing nutrient concentrations and 
al^e problems downstream from wastewater discharges. 

WATER TEMPERATURE 
Growth and propagation of trout and other aquatic life in the 
Clark Fork River and its tributaries are affected by water 
temperature, which is influenced by streamflows. High summer 
water temperaoires reduce feeding rates of trout. Sustained 
temperamres above 67°F can be lethal. High temperaaires also 
reduce how much oxygen is dissolved in water, and they increase 
algal growth, creating potential for additional stress on fish. Water 
temperatures are a problem in chronically dewatered reaches of 
the Clark Fork, especially above its confluence with Rock Creek. 

Dissolved Oxygen 

Trout and the insects they feed on need adequate amounts of 
dissolved oxygen in the water column. Oxygen from the atmos- 
phere is dissolved in water, and concentrations of it are influ- 
enced by water temperamre (cold water holds more), aeration 
rates, the physical features of a stream (swift streams dissolve more 
oxygen than tranquil streams), and depletion by oxygen-demand- 
ing wastes or aquatic plants. Low levels of dissolved oxygen and 
violations of state standards are not uncommon in the river above 
the Rock Creek confluence during mid-summer 

Low dissolved oxygen concentrations are associated with the 
river's nutrient/algae and temperature problems. High densities 
of alg9e can deplete dissolved oxygen in the water column at night 
(algae use oxygen at this time). High water temperatures also 
reduce the amount of oxygen that can be dissolved. And dewatered 
streams, because they are often sluggish and have limited surface 
areas, have reduced capacity to dissolve oxygen. Consequently, 
streamflow levels in the Clark Fork have a direct bearing on the 
river's ability to support fish and other aquatic life. 



Water Quauty- Water Quantity Integration 

Nearly all beneficial uses are affected by streamflow-influenced 
water quality. Impacts can include seasonal limitations for specific 
water uses and increased costs for water treatment or irrigation 
system maintenance. Montana water law includes few safeguards 
for adequately protecting water quality from reduced streamflows 
or over-appropriation of water Wastewater discharge permits 
authorized by the state" are based on a so-called "7-Q-lO" stream- 
tlow. This is the statistically calculated flow expected to be sus- 
tained for 7 consecutive days no more than once every 10 years. 
Wastewater discharges that are allowed when streamflow condi- 
tions are lower than the 7-Q-lO level can violate water quality 
standards and harm beneficial uses. Streamflows in the upper 
Clark Fork fall below the 7-Q-lO level more frequently than every 
10 years. 

When streamflow depletion produces frequent violations of 
water quality standards, the state must develop a process that 
allocates discharges. Calculations are made to determine accept- 
able loads of various pollutants in different stream reaches. These 
loads (known as Total Maximum Daily Loads, or "TMDLs") are 
then aflocated among municipal, industrial and agricultural 
sources. The sources are expected to comply with their alloca- 
tions so that water quality can be restored. The TMDL process 
helps ensure compliance with water quality standards, and it can 
mean pollution sources have to employ new pollution control 
or wastewater treatment technologies. Voluntary TMDL limita- 



tions are currently being negotiated among municipal and indus- 
trial sources in the Clark Fork basin 

Montana water-use law was amended by the 1991 Legislature 
to help ensure that new water use permits, or changes of existing 
permits, do not harm water quality. But the changes have little 
effect on existing conditions in the upper Clark Fork basin. 

The Upper Clark Fork Steering Committee and its subcom- 
mittees will continue evaluating ways to address water quality 
problems created by depletion of stream flows. Among the items 
the committee has tackled, or will continue to examine, are 
1) using discharges from wastewater treatment plants for irriga- 
tion instead of putting them in the river; 2) reducing nutrient 
impacts through regional or local prohibitions on the sale of 
phosphate detergents; 3) increasing streamflows during summer 
with in-stream flow leases, increased storage and water conser- 
vation ; 4) reducing sources of polluted runofl'; 5) studying whether 
closures on some new groundwater use-permits can better pro- 
tect hydrologically connected surface waters; and 6) resolving 
disputes among water users through committees of local users. 

The complexity of the relationship between water quantity and 
water quality demonstrates the need for integrated, basin-wide water 
planning in the Clark Fork watershed. And like the old adages of 
ecosystem science- "Everything is conneaed to everything else" and 
"There's no such thing as a free lunch" - imply, the variables of qual- 
ity and quantity are inseparable. Addressing this interdependence 
is a major chaflenge of the upper Clark Fork's citizens. 



Clark Fork Instream Flow Leasing 

Pilot Program 

Bruce Farling 

December 1995 



Ho 



low to maintain adequate streamflows for fish while also pro- 
tecting water rights has long been a contentious topic in Mon- 
tana Yet in 1995 the Upper Clark Fork Steering Committee and 
the Montana State Legislature took small but important steps 
towards reducing the friction that sometimes occurs between 
anglers and ranchers over water use. 

Several elements of the Clark Fork River Basin Water Manage- 
ment Plan required approval by the 1995 Legislature. One com- 
ponent was a 10-year pilot program that allows landowners to 
lease water rights to private and public interests for in-stream flow 
protection. This legislative change parallels -with a few key 
differences -another bill passed overwhelmingly in 1995 authoriz- 
ing the leasing of water rights to private parties for in-stream flows 
anywhere in the state. Montana's Department of Fish, Wildlife 
and ftirks has been aflowed to lease water for in-stream flows 
since 1989. The only lease it has in the upper Clark Fork basin 
is in the Blackfoot drainage. 

The reason the Clark Fork pilot program passed (and the 
statewide authorization, too) was that it doesn't tinker with the 



fundamental principle of Montana water law- the prior appropria- 
tion doctrine, which says water is allocated on the basis of "first 
in time, first in use " In other words, you can't lease water or leave 
it in-stream if you don't have a right to it The Clark Fork pro- 
gram also clearly says that leases cannot occur if they adversely 
affect the use of water by another legitimate water-right holder 

The basics of the program are: 

n It applies only to existing rights 

D Anyone with a valid water right can leave the water in stream, 
or lease it to another party- both private and public -who 
wants to maintain flows for fish. 

n Water can only be left in-stream, or leased to others, if it doesn't 
adversely affect other water right holders. 

D Leaving water in-stream requires water-right holders to apply 
to the Department of Namral Resources and Conservation for 
a "change of use " This is no different than what currently oc- 
curs when, say, irrigation water is going to be changed to in- 
dustrial use, or when a point of diversion is moved 



# 



n Other water right holders can object to the in-stream (low 
change during the change-of-use process. 

n Only the amount of water historically consumed may be leased 
beyond the historical point of diversion. 

D Applicants for the change of use must demonstrate it will 
benefit fish, and the lessee/lessors must prepare a plan for 
DNRC approval on how the water will be measured. 

D DNRC can revoke the in-stream (low change if other water 
right holders provide credible evidence they are being harmed. 

n Under no circumstances will water ri^ts be sold for in-stream 
flows (the law allows them to be sold for other purposes, such 
as agricultural, industrial or municipal use). 

D The program expires in 10 years (Jan. 1, 2005), though a lease 
can be renewed before that date. 

D The Upper Clark Fork Steering Committee must report to the 
legislature at the end of the pilot period on whether the pro- 
gram should be renewed or modified, and on how it affected 
water-right holders, fish, recreation and tax values. 
Because of the constraints aimed at protecting other water users 

and alleviating fears that agriculture could be harmed, conserva- 



tionists and ranchers on the steering committee both agree it's 
unlikely the program will be widely applied. The program's most 
likely use will be to leave strategic, small amounts of water in Clark 
Fork tributaries to take care of a seasonal fishery value. In addi- 
tion, because of the large role potential objectors have in the pro- 
cess, it will be extremely impractical to initiate in-stream flow leases 
for streams that are used by many water-right holders. For that 
reason. Trout Unlimited sees little likelihood of the pilot program 
being used to maintain flows in main-stem rivers such as the Clark 
Fork or Little Blackfoot. 

A typical application of the program might be to provide water 
for a few weeks during spawning or migration periods for local 
trout in a small stream that is used by just a few water-right 
holders. The goal is to help fish while not asking water users to 
sacrifice. In fact, leasing can provide a new source of income for 
a water right holder 

The program's success largely rests on how much it is sup- 
ported by local water-users. In some drainages it could be an im- 
portant advance in building bridges among interests who don't 
necessarily have to be at odds over water. 




Upper Clark Fork River Basin Steering CommiUee 



Steering Committee Reappointed 



fursuant to S.B.144, DNRC Director Mark Simonich has re- 
appointed the Upper Clark Fork River Basin Steering Committee. 
The Steering Committee now has twenty-two members, including 



AuDRtV ASPHOLM 

400 Elm St 
Anaconda, MT 58711 
563-6949 

SbNATOR Tom BtcK, Rancher 
651 Greenhouse Rd 
Deer Lodge, MT 59722 
846-2452 

Bob BtNsoN 

Clark Fork-Pend Oreille 

Coalition 
2325 Valley Dri\'e 
Missoula. MT 59801 
549-1426 

Si;NAH)B Vivian BucXJKb 
1610 Madeline Ave 
Missoula, MT 59801 
728-3438 

Storr Brown 

US Environmental Protection 

Agency 
Federal Bldg. Drawer 10096 
Helena, MT 59626 
449-5720 X-259 

Rt)BIN BuLli)CK 

ARCO 

307 E Park St., Suite 301 

Anaconda, MT 59711 

563-5211 



Jim DiNSMORb 

Granite Conservation District 

& Rancher 
RO Box 224 
Hall, MT 59858 
288-3393 

BRUcb Farlinc 
Montana Trout Unlimited 
RO. Box 7593 
Missoula, MT 59807 
543-0054 

Holly Franz 

Montana Ftower Company 

Gough, Shanahan, et al 

RO. Box 1715 

Helena, MT 59624-1715 

442-8560 

Sibvb Fry 

Washington Water Power Company 

PO Box 3727 

Spokane, WA 99220 

(509) 482-4084 

Gary Incman 
Montana Department of 
Environmental Quality 
Capitol Station 
Helena, MT 59620 
444-1420 

RbPRtSbNTATIVt DON LaRSON 

PO Box 285 

Seeley Lake, MT 59868 

677-2570 



several familiar faces and some interesting new ones. New mem- 
bers will be profiled in upcoming issues. The members along 
with the constituency or area they represent include: 



f 



EuCLNt MANLbY 

Flint Creek Valley & Montana 

Water Users Association 
15 Willow Tree Lane 
Hall, MT 59837 
288-3409 

Brlnt Mannix 
Big Blackfoot Rancher 
2434 Highway 141 
Helmville, MT 59843 
793-5857 

Curt Martin 

Montana Department of 

Natural Resources & 

Conservation 
PO Box 5004 
Missoula, MT 59800 
721-4284 

Bill Mosilr 

Deer Lodge Valley Rancher 

371 Freezeout Lane 

Deer Lodge, MT 59722 

846-2828 

Jim C QuiCLbY 

Little Blackfoot Rancher 

Sunset Ranch 

Box 256 

Avon, MT 59713 

492-6542 



Tom Sandlrs 

Rock Creek Rancher 

1691 Rock Creek Road 

Philipsburg, MT 59858 

859-3345 

John Sbsso 

Butte/Silvcrbow Planner 
155 West Granite 
Butte, MT 59701 
723-8262 

RtPRbSbNTATlVb Lz SmITH 

311 Freezeout Lane 
Deer Lodge, MT 59722 
846-1763 

Obb UbLAND 

Silverbow Rancher 

R R 3 

Silver Bow. MT 59750 

782-6190 

DbNNis Workman 

Montana Department of Fish, 

Wildlife & t^rks 
3201 Spurgin Road 
Missoula. MT 59801 
542-5500 

Gerald Mueller. Facilitator 
7165 Old Gram Creek Road 
Missoula, MT 59802 
543-0026 



c 



Northern Lights Institute 

Cij\rk Fork Steering Committee 

PO. Box 8084 

Missoula, MT 59807-8084 



Non-Profit Oi;gani2ation 

U.S. Postage 

PAID 

Missoula, MT 59801 
ftrmit « 74 



HftROLD L. CHfiMBERS 
MONTftNft STATE LIBRARY 
1515 E. SIXTH ftVENUE 
HELENA, MT 59620 



Montana Slate Library 



333. ^1 

hi X(i LHTC to 3 0864 1004 5774 9 

"■' THE UPPER CLARK FORK 






Watser News 



^TP DOCUMENTS COLLECTION 

JUN21 1996 

ANA STATE LIBRARY 
..-. *^ E. 6th AVE. 
HELENATHWONTANA 59620 



Volume 2 Number 2 
June 1996 



PLEASE 




c 



The Upper Clark Fork 

Management 

Steering Committee 

How're We Doing? 



continued planning and management of the waters of the 
Upper Clark Fork River basin must be rooted at the local level. 

The Steering Committee repeatedly reviews this goal and 
realizes its effectiveness is only measured by how well it represents 
local basin water users and how well it listens to and acts on local 
water users' concerns. 

In preparing recommendations for the 1997 Legislature, we're 
interested in hearing from you regarding the representation, terms 
and method of appointing members to the Steering Committee. 

Presently the Steering Committee has 21 members, whose 
names, addresses, and telephone numbers are listed on the back 
page of this issue. A breakdown of their Interests, Occupations, 
and Organization Affiliations follows here: 



InUrest/Occupation/Organization 
Farmers and Ranchers 

Sportsperson or Environmental Or^nizations 
Electricity Utilities/Clark Fork Dam Owners 
Industry 

Basin Local Governments 
State Agencies 
Federal Agencies 
State Legislators 
(] counted as Jarmer/mncher) 



Number 
8 
2 
2 
1 
2 
3 
1 
4 



Zinc 



lother way of looking at representation is by geographical 
representation. Below numbers of members (except for state and 
federal members and those representing utilities) are designated 
by watershed. 



Miesoulii 



I li \ 




Watershed Number 

Upper Clark Fork Mainstem and Tributaries 7 

Little Blackfoot 1 

Flint Creek 2 

Rock Creek 1 

Big Blackfoot 2 

Lower Qark Fork Mainstem and Tributaries 3 

In your view is the present membership representative of the 
basin's water users, interests and managers? 

Presently members are appointed by the Director of the Depart- 
ment of Natural Resources and Conservation and do not have 
terms. Should someone else make the appointments, and if so, 
who and for what terms? 

You are the local people who have an interest in the basin. 
We want to hear from you. Write to us with your ideas and recom- 
mendations. 



a 



Groundwater 



ne of the major tasks of the Upper Qark Fork Steering Com- 
mittee is to review groundwater regulation. Since 1991, the Upper 
Clark Fork basin has been closed to most new surface water uses. 
With little surface water available, groundwater will likely be the 
source for new water development. In considering groundvvater 
development, there are a number of competing considerations. 
The first is protection of existing surface water rights. Ground- 
water is generally connected to surface water; the question is how 



closely. DNRC currently cannot issue permits for groundwater 
wells that are immediately adjacent to a stream and instantly af- 
fect surface water flows. Permits are issued, however, for wells that 
may affect surface water flows as long as the effect is not instan- 
taneous. Cumulatively, future groundwater use may reduce stream 
Qows relied on by surface water users with senior priority dates. 

Balanced a^inst the need to protect surface water is a desire 
not to unduly restrict economic growth. Most new business enter- 
prises in Montana need water, and groundwater is often the only 
available choice. Groundwater is also relied on for future drink- 
ing water supplies. 

On top of these competing considerations is a general lack of 
site specific knowledge concerning groundwater aquifers and their 
interaction with surface water Since groundwater aquifers act as 
natural storage, some amount of groundwater can be diverted 
without impacting stream flows. Without specific information, 
it is difficuk to make informed decisions concerning groundwater 
permitting. The steering committee has started to fill this infor- 
mation pp by supporting the Flint Creek Remrn Row Study, 
creating a Geographic Information System (GIS) for the basin, 
and successfully encouraging the Montana Groundwater Char- 
acterization Program to designate the Upper Clark Fork as the 
next basin for in-depth study. 



J. he 



. he steering committee has also looked at the approaches of 
other Western states. These approaches range from a legsl pre- 
sumption that all groundwater is hydrologically connected to sur- 
face water to recognizing no connection whatsoever Many states 
prohibit junior groundwater uses that adversely affect senior 



surface water rights. Enforcement of these prohibitions differ fi-om 
state to state. In some states, groundwater regulations are enforced 
solely by the state agency. In other states such as California, 
groundwater is largely regulated through local basin management 
entities. 

The State of Idaho's use of local groundwater boards is par- 
ticularly interesting. In Idaho, as in Montana, the state water agency 
is responsible for issuing new groundwater permits. A local 
groundwater board, however decides disputes between surface 
and groundwater users. When a senior surface water user files 
a complaint claiming adverse affect fi-om junior groundwater uses, 
it is referred to a local groundwater board. 

The local groundwater board has three members: a qualified 
engineer or geologist appointed by the local district judge, the 
director of the state water department, and a local irrigator who 
is appointed by the other two. Other than the state department 
director, none of the members can be state employees. The local 
board holds hearings and rules on complaints. If the board deter- 
mines there is adverse affect, it can order junior groundwater 
users to cease their use indefinitely or during certain periods, or 
may require the replacement of surface water to make up for the 
groundwater use. If any party is dissatisfied with the local board's 
ruling, they can appeal and have another hearing before the distria 
court. 

This is one of many approaches being considered by the steer- 
ing committee. If you have any suggestions or questions concern- 
ing groundwater, please contact any member of the steering 
committee or its facilitator 

Holly Franz 



M, 



One Member's View 

Water Planning and Managemmt-An Upstream Swim for Regulators? 



Lontanans are making ever-increasing demands on their 
water resources, but our water law does not appear to be chang- 
ing to meet these new demands. 

Mining interests press state government for more lenient water 
quality standards in their quest to expand mining activities in 
Montana. Agricultural interests with modem machinery can place 
more and more ground under cultivation with less effort, increas- 
ing the demand for irrigation water Recreationists are placing ever- 
increasing demands for improved fisheries and expanded boating 
opportunities. 

A fill! thirty pages of the Index in the Montana Code Annotated 
(MCA) -the laws of Montana -are devoted to water law. Perhaps 
no topic is more legislated than water But a cursory review of 
that law reveab a surprising paradox. Much is said about water 
ownership and water quality, but very little about quantity. Re- 
search and investigation are revealing more about the vast storage 
of water in the ground and its relationship to the surface waters. 



But we have overlooked groundwater and its inter-relationship 
to surface in Montana law and we must change that. 

As die demands for our water change and increase, the prob- 
lems associated with use, planning and management increase, 
too. As a member of the Montana legislature, I am struck by the 
number of problems we should be addressing but are not. 

• We have a poor regulatory fi^amework and haphazard, under- 
fianded water enforcement in Montana. If you have a problem 
with your water, you call a plumber or a lawyer in this state -not 
a state or county official -to resolve it. 

• We presume a surface water right includes the subsurface 
water within those boundaries without knowing how much sub- 
surface water is involved, how it arrives or where it is found. 

• We do not conjunctively manage our groundwater with our 
surface water 

• We have no formal statewide, or basin-by-basin planning 
and management systera 



• We have no mechanism for establishing local groundwater 
districts which could function as irrigation districts. 

• We do not require all users to determine and guarantee "safe 
yield" parameters which will match groundwater extraction and 
re-charge levels. 

• We have no solid funding mechanism for water storage 
projects. 

• We have no inventory of return Cow data for our surface 
watercourses. 

• We do not recognize groundwater storage as a beneficial use. 

• Until just recently we allowed developers to proceed without 
guaranteeing the availability of water to a subdivision. We now 
have subdivisions in existence which have no legsl water rights, 
and others with inadequate water supplies. And we have sub- 
divisions in which the septic systems are polluting the water 
supply 

• We face numerous complexities in "leasing" water for in- 
stream flow that must be addressed by the legislature, which only 
recently legalized the concept. 



iak 



Laken coUectively the problems seem insurmountable, but taken 
individually they seem perfectly manageable if state government 
begins a methodical approach to dealing with them. 

We in state government need to re-think the role of local govern- 
ing bodies in water management. HistoricaUy the state has been 
reluctant to dele^te control to local governments for fear of 
creating a hodgepodge of water regulations across Montana, but 



there appears to be a growing sentiment for increasing local con- 
trol over water planning and management questions. 

State government needs to better research and investi^te the 
relationship between surface and subsurface water It needs to 
formalize a planning and management system under which local 
governments can operate. 

State government should begin to assume a more technical and 
advisory role, it should create incentives to store water, and it 
should create the funding mechanisms to help accomplish that 
goal. It must become consistent and predictable about the allow- 
able levels of poUution it wiU permit and it must get tough on 
the enforcement end, once fair and enforceable laws are on the 
books. 

State government must get tough with realtors and developers. 
Realtors must know water law and must fully determine water 
rights and resources for buyers and sellers. Developers, too, must 
understand the effects of their activity on water resources and 
be prepared to demonstrate they are not degrading or beleaguering 
the water resources associated with their developments. 

State government must take the lead and not yield to the special 
interest groups which arrive in Helena every legislative session 
with their wishes in hand. Water is one of our most precious 
resources, and clean water is becoming a scarce commodity, even 
in Montana. We at the state government level must do everything 
in our power to plan for the wise use of this resource. 

Don Larson 



lis 



Continuing Education for Real Estate Salespeople 



i with many professions licensed by the State of Montana, 
persons who are licensed real estate brokers and agents must 
take approved continuing education courses in order to renew 
their licenses each year 

Selling properties with water rights, especially ranches, requires 
a special knowledge as to how all existing rights relate to the prop- 
erty being sold or purchased by clients. One cannot make general 
assumptions about water availability, adequacy of rights, reliabibty 
of delivery, or associated costs. These are some of the many ele- 
ments of water rights that determine the value of the lands and 
the water associated with them. 

Those engaged in real estate must become aware that there 
is now a special need for a greater awareness of water rights and 
all their implications. Most water rights in this state are involved 
in a statewide general adjudication process. This process will 
determine what those rights are. That final determination may 
affect certain property values. 

At the present time, most continuing education real estate 
courses do not provide adequate information on the subject of 
water rights and water law. Most courses are too generalized and 
lack in-depth examination of the role water rights play in repre- 



senting the true value of any parcel of real estate. 

There are ever increasing problems developing in subdivisions 
of properties with water ri^ts, and also where waters flow through 
these properties. Water right transfer certificates, in many cases, 
are not being filed as required by statute. The existence of water 
rights and their implications on a property being sold are seldom 
the subject of any in-depth discussions. These situations can create 
serious le^l problems. 

Most importantly, symptomatic problems in basin systems are 
probably never discussed because there is almost a complete lack 
of awareness about what these problems are. As we become more 
sophisticated in discovering the problems around real estate trans- 
actions and water rights, we probably will see ever increasing litiga- 
tion. The defendants and plaintiffs will be the professional real 
estate salespeople and their clients. 

It is a high priority to develop and offer continuing education 
courses that adequately prepare professional real estate salespeople 
to deal with transactions that involve water rights. Gaining this 
knowledge and using it responsibly will benefit everyone -realtors 
and their clients, be they buyer or seller 



Upper Clark Fork River Basin 
STEERING COMMITTEE 



r 



AUDRtY ASFHOLM 

400 Elm St. 
Anaconda, MT 58711 
563-6949 

StN/ODR Tom BtcK, Rancher 
651 Greenhouse Rd. 
Deer Lodge, MT 59722 
846-2452 

BoBBtNSON 

Clark Fork-Pend Oreille 

Coalition 
2325 Valley Drive 
Missoula, MT 59801 
549-1426 

Senator Vivian BROOKt 
1610 Madeline Ave 
Missoula, MT 59801 
728-3438 

Scorr Brown 

US Environmental Protection 

Agency 
Federal Bldg., Drawer 10096 
Helena, MT 59626 
449-5720X-259 

Robin BulijOck 

ARCO 

307 E.Park St, Suite 301 

Anaconda, MT 59711 

563-5211 



JimDinsmore 

Granite Conservation District 

& Rancher 
PO. Box 224 
Hall, MT 59858 
288-3393 

Bruce Farling 
Montana Trout Unlimited 
PO. Box 7593 
Missoula, MT 59807 
543-0054 

Holly Franz 

Montana ftiwer Company 

Gough, Shanahan, et al. 

PO Box 1715 

Helena, MT 59624-1715 

442-8560 

Steve Fry 

Washington Water Power Company 

PC Box 3727 

Spokane, WA 99220 

(509)482-4084 

Gary Ingman 
Montana Department of 
Environmental Quality 
Capitol Station 
Helena, MT 59620 
444-1420 

Representative Don Larson 
PO. Box 285 
SeeleyUkcMT 59868 
677-2570 



Eugene Manley 

Flint Creek Valley & Montana 

Water Users Association 
1 5 Willow Tree Lane 
Hall, MT 59837 
288-3409 

Brent Mannix 
BigBlackfoot Rancher 
2434 Highway 141 
Helmville,MT 59843 
793-5857 

Curt Martin 

Montana Department of 

Natural Resources & 

Conservation 
PO. Box 5004 
Missoula, MT 59800 
721-4284 

BillMosier 

Deer Lodge Valley Rancher 

371 Freezeout Lane 

Deer Lodge, MT 59722 

846-2828 

Jim C. Quigley 

Little Blackfoot Rancher 

Sunset Ranch 

Box 256 

Avon, MT 59713 

492-6542 



Tom Sanders 

Rock Creek Rancher 

1691 Rock Creek Road 

Philipsburg, MT 59858 

859-3345 

JohnSesso 

Butte/Silverbow Planner 
155 West Granite 
Butte, MT 59701 
723-8262 

REPREStNTATivE Uz Smith 
31 1 Freezeout Lane 
Deer Uxdge,MT 59722 
846-1763 

Ole Ueland 

Silverbow Rancher 

R.R.3 

Silver Bow, MT 59750 

782-6190 

Dennis Workman 

Montana Department of Fish, 

Wildlife & Parks 
3201 Spurgin Road 
Missoula, MT 59801 
542-5500 

Gerald Mueller, Facilitalor 
7 165 Old Grant Creek Road 
Missoula, MT 59802 
543-0026 



r 



NORTHERN LIGHTS INSTITUTE 
Clark Fork Steering Committee 
PO. Box 8084 
Missoula, MT 59807-8084 



Non-Profit Organization 

US. Postage 

PAID 

Missoula, MT 59801 
ftrmit»74 



HftROLD L. CHAMBERS 
MONTANA STATE LIBRARY 
1515 E. SIXTH AVENUE 
HELENA MT 596piZI 



^ ^ THEUPPERCLARKFORK 

'^3 



Montana State Library 



3 0864 1004 6236 8 



Water News 



STATI DOCUMENTS COLLECTION 

1996 



Volume 2 Number 3 
November 1996 



Emergency & Repair: 
East Fork Dam 



L 



. n late June, turbid water was reported flowing from the East 
Fork Dam in the Rock Creek drainage. By July 4, a sinkhole 
was discovered. Disaster Emergency Services announced "dire 
circumstances." Evacuation orders were issued for residents 
of upper Rock Creek who left their homes with children in 
tow. Catde were moved. Mid-creek residents were placed on 
alert with uncertain understanding of how they would be 
notified in case of the dam's failure. Lower Rock Creek residents 
were also on alert. Business as usual came to an immediate 
halt. Emergency evacuation teams were hastily created and set 
about gathering basic information while the emergency was 
in full-swing. The creek was closed to non-essential traffic until 
July 18. 

The dam held, but the event raised many serious questions: 
What was the cause? What were solution alternatives? Why 
had there been no emergency evacuation plan prepared ahead 
of time? How could residents be sure of receiving an early warn- 
ing during some future possible emergency? What would have 
been the effects of disaster throughout the Rock Creek drainage? 
And what about the effects at MiUtown Dam's Superfund Site 
if the East Fork Dam had failed? 

Until the near disaster this summer, Rock Creek residents 
had never had a chance to be involved with the creation and 
execution of the determining policies for the the dam which 
holds Rock Creek water for use by Flint Creek VaUey irrigators. 
The first task for Rock Creek residents was to devise and find 
a way to have an effective voice in the events that affected their 
lives and livelihoods so dramatically. 

Since July, Rock Creek residents have attended scores of 
meetings and added their comments to discussions about the 
dam. In an effort to deal with emotion, quash rumor, and ob- 
tain real information in an open forum, the landowners have 
diligendy tried to create a positive atmostphere for problem- 
solving. While the Water Users offered to sponsor public infor- 
mational meetings, DNRC and the Upper Clark Fork Steering 
Committee have bodi answered the need for the on-going forum 
for public information and participation needed by the Rock 
Creek residents. The fact that different groups sometimes have 
different interests at stake makes the situation difficult, but this 
approach has proved constructive. 



Mi « soul 




As the sinkhole 

and the dam were 

investigated, engineers 

found that, in addition to sinkhole-related problems, water was 

seeping through the dam's foundation at dangerous levels. Some 

feel that the sinkhole problem may have been a fortuitous signal. 

Perhaps the next problem would have been far more serious. 

Critical items in the current "design fix" include replacing 
the fuU-length of main drain (site of the sinkhole), installing 
numerous relief wells in the foundation, and reconstructing 
a clay blanket to prevent excess seepage into the foundation. 
Monitoring mechanisms wiU be installed. Rick Bondy, head 
DNRC engineer, places faith in a number of "redundancies" 
which are built into the repair design to raise the degree of 
confidence level in the entire fix. 

However, the time frame for reconstruction of the dam is 
extremely tight- only two months. Completion is targeted for 
November 4, with a faU-back date of November 15. Because 
of tight timing and because their risk is so high, the Rock Creek 
landowners have hired an independent engineering firm 
(Dames & Moore out of Seatde) to assess the reconstruction 
plans. Rick Bondy has welcomed die independent review. Land- 
owners genuinely hope that the independent review wiU con- 
firm the plans generated by DNRC and MSE-HKM, DNRCs con- 
tract engineering firm. If not, questions could be raised and 
landowners expect any inadequacies to be addressed before 
completion. In addition to questions about the "design fix," 
important issues of continuing concern are contingency plan- 
ning (in case weather or other problems invalidate the sched- 
ule), obtaining probable maximum flood information, emer- 
gency planning, and the addition of an early warning system. 
Finally, landowners will be seeking a routine method for being 
advised about annual dam inspections, findings, and follow- 
through. 

The situation at the East Fork Dam this summer had all the 



iL>L.< 



continued from page 1 
earmarks of a situarion which could disrupt community in 
serious and long-lasting ways. The reconstructed dam is not 
complete, it isn't paid for yet, and there is no early warning 
system. But- so far -the project has moved along as well as it 
has because of the constructive attitude of people who have 
put in long hours at their own inconvenience and often at their 
own expense. Where every group's "stake" has been recognized 



as legitimate, there has been greater cooperation. We trust that 
cooperation will continue and that satisfactory results regard- 
ing the rebuilding of the dam and die inclusion of Rock Creek 
residents in future safety reviews will result. 

Ellen Knight, 

Rock Creek Trust 

Suzy Periano, 

Rock Creek Resident 




a 



East Fork Reservoir: adnrc Perspective 



'n June 30, 1996, the East Fork Reservoir was full with a 
small flow of water passing over the emergency spillway. At this 
level the reservoir impounds approximately 16,000 acre feet of 
water and has a surface area of 390 acres. The dam itself is 83 
feet high, 1,075 feet in length, and has a crest width of 25 feet. 

On diis morning, a volunteer campground host from the U.S. 
Forest Service campgrounds observed silty water discharging 
from the dam's drainage culvert. Concerned over the affects of 
this silt on the Rock Creek fishery- one of Montana's Blue Ribbon 
Trout Streams -the volunteer notified his supervisors. Forest 
Service personnel recognized that this very srnall source of silt 
was not a danger to the fishery; however, they also recognized 
it as an abnormal operating condition. Immediately, they notified 
dam owners: State of Montana's Department of Natural Resources 
and Conservation (DNRC), and operators: Flint Creek Water 
Users Association (Association). 

Also recognizing that the silt was a potential a sign of more 
serious problems, Don Dee Kennedy Granite County Sheriff, 
implemented an around-the-clock inspection and monitoring 
response. W^ter releases fi-om the reservoir were significantly 
increased to relieve pressure behind the dam. 

Over the next few days the drainage culvert waters cleared. 
On July 4, a small area of settling developed on the downstream 
face of the dam. This settling was the residt of a "sinkhole" located 
over the main drain culvert. Sinkholes are formed when water 
removes the small, fine-grained materials through erosion proc- 
esses. The coarser materials are left behind but remain in only 
partial contaa, creating larger pore spaces and voids. This bridg- 



ing of coarse materials provides an ever-increasing path for water 
flow. Erosion processes often continue unseen. Eventually the 
bridged materials collapse downward, creating the sinkhole. 

DNRC and the Association were working with Granite County 
Sherifl^ and Disaster and Emergency personnel to evaluate con- 
ditions and develop a response. The discovery of the sinkhole 
on July 4 forced the decision lo evacuate downstream residents 
and visitors. This precautionary action was triggered by the com- 
bination of limited availability of emergency routes out of Rock 
Creek and high numbers of recreational visitors in the water- 
shed, together with the uncertain and chan^ng dam conditions. 

Z/y the end of July, DNRC had begun an intensive evaluation 
of dam conditions. The consulting engineering firm of MSE-HKM 
fi-om Billings, OKeefe Drilling fi-om Butte, and Mungas Construc- 
tion Company of Philipsburg were hired to assist with explora- 
tory work. Six monitoring wells were driUed to examine embank- 
ment conditions and evaluate water levels and pressures. One 
exploratory weU was driUed near the sinkhole on the dam's (ace. 
The other weUs were drilled into the danis core, toe, and founda- 
tion materials. Test pits were dug to examine soil conditions in 
the damJs upstream embankment and on sites upstream but adja- 
cent to the dam. 

MSE-HKM assisted DNRC with a detailed evaluation of the 
dam and provided engineering services. MSE-HKM has had 
extensive experience with earth dams and had assisted DNRC 
with the reconstruction of Hyalite Creek, a similar earthen dam 
near Bozeman. continued on page 5 ► 



Water Leasing for Instream Flow 



Historical Perspective 



R 



'uring the early settlement of the West, neither attitudes 
nor economics contemplated the recreational use of water in 
streams. Consequendy, emphasis was placed on the removal 
of water for mining, agricultural and other purposes, and no 
consideration was given to the need for instream flows to main- 
tain fish and wildlife resources. Instead, the legal system evolved 
the "first in time is first in right" approach in which the removal 
of water has priority over keeping it in streams. After more 
than 130 years of water development in Montana, streamflows 
have been reduced in nearly every river basin. This "dewater- 
ing" has had adverse impacts on the fish populations and 
recreational use of these streams. In recent times, however, 
recreation, particularly fishing, has attained increasing social 
and economic importance. There is more emphasis on finding 
ways to maintain and improve streamflows to provide fish pop- 
ulations that will satisfy the angling public. Because many im- 
portant fishing streams are already over appropriated, flows 
can only be improved by putting some of the already ap- 
propriated water back into the stream. 

This is the concept underlying water leasing. 

Why is water leasing important? The answer lies in the habi- 
tat needs offish. Good habitat produces good fish and fishing. 
Generally, good stream fish habitat consists of three com- 
ponents: (1) an unaltered physical channel, (2) an adequate 
quantity of water to fill the physical channel, and (3) good water 
quality. Instream flows are the water quantity component of 
stream habitat. One means to provide that component is to 
lease existing diversionary water rights and temporarily transfer 
that water back into streams. This makes previously unavailable 
water available to improve fish habitat in dewatered streams. 

However, Montana water law prevented this concept from 
being tried until 1989. 

yj Leasing Legislation 

Xrobably the most controversial natural resource issue that 
came before the 1989 Montana Legislature was the water leas- 
ing study bill, HB 707, which was introduced as a result of the 
1988 droughts impact on stream fisheries. The bill was strongly 
supported by the environmental community and strongly op- 
posed by the agricultural community. Although at one point 
it was rejected by the Legislature, HB 707 was revived and after 
amendments was approved in the closing days of the session. 
It was signed into law in May 1989. 

The purpose of the leasing law is to study the feasibility of 
leasing existing water rights to enhance streamflows for fish^ 
eries. The original bill created a four-year pilot program that 
allowed only Montana Fish, Wildlife and Parks (DFWP) to lease 
water rights from willing individuals. DFWR with the consent 
of the Fish, Wildlife and t^rks Commission, provided the Board 
of Natural Resources and Conservation (Board) with a list of 
specific stream reaches on which leasing is desired. The Board 
could designate up to five stream reaches where water could 



be leased for instream flows to enhance the fisheries. Amend- 
ments to the original bill in both the 1991 and 1993 legislative 
sessions extended the four-year study to a ten-year study and 
gradually increased the number of eligible stream reaches from 
five to twenty. The current law expires June 30, 1999. State 
government reorganization in 1995 eliminated the Board and 
most of its duties were taken over by the Department of Natural 
Resources and Conservation (DNRC). 

In 1995, the Legislature again expanded water leasing oppor- 
tunities, this time without controversy, by authorizing a ten- 
year study in the upper Clark Fork River Basin which tests 
allowing any public or private entity to lease an existing water 
right for instream flows from a willing lessor to benefit the 
fishery A similar statute was also passed allowing a similar test 
state wide. 

DFWP can only lease water from a wiUing party. If DFWP 
and the water rights holder cannot agree to the terms of a lease, 
the lease will not occur Leases cannot result in the confisca- 
tion of water rights and a lease may not be approved until any 
objections to the lease are resolved through the DNRC water 
right change process. Before going through the change proc- 
ess, an Environmental Assessment is written for each lease and 
distributed for public review and comment. 

The maximum amount of water that may be leased is the 
amount historically diverted by the lessor at his point of diver- 
sion. However, only the amount historically consumed, or a 
lesser amount as determined by DNRC, may be protected for 
instream flows below the point of diversion. 

A lease may be issued for a maximum period of ten years 
but may be renewed once for an additional ten years. Leases 
that are the result of a water conservation or storage project, 
such as converting from flood to sprinkler irrigation, can be 
issued the first time for not more than twenty years. There is 
no provision for renewinga twenty-year lease. All leases entered 
into prior to June 30, 1999, remain valid until the expiration 
of the leases. 

rp Early Problems 

J. he leasing study got off to a slow start for several reasons. 
First, MFWP elected to proceed at a cautious, but deliberate, 
pace given the concern and controversy surrounding passage 
of HB 707. Second, MFWP proceeded to conduct several studies 
on the impact of water leasing prior to submitting a change 
of use application to DNRC. One of the studies determined 
the market value of leasing existing water rights for instream 
flows. Two others involved hydrologic analyses of the first two 
streams where leasing was being investigated to determine the 
possible effects of the leases on existing water users. Some sup- 
porters of the leasing bifl disagreed about need for the market 
value study They argued that MFWP should simply start nego- 
tiating water leases. Because a market for transfer of existing 
rights to instream flow has not been established in Montana, 



the market value study provided a basis for negotiating the price 
of leasing water However, the amount paid for a lease is nego- 
tiable and the outcome depends, to a large extent, on how the 
negotiating parties perceive the value of the rights to be leased. 
The initial slow pace of the program can also be attributed 
in part to the post-legislative carryover of concern by some agri- 
cultural folks that leasing would interfere with their water rights 
and would go against the traditional concept of water use, open- 
ing the door for other changes that would be unacceptable. 
Some potential lessors were unwilling to be the first to lease 
water because of perceived repercussions from others in the 
agricultural community. As time passed, the concern of these 
folks diminished as they found that MFWP was not acquiring 
leases very fast and that interference with their water rights 
and existing water use was not occurring. Gradually, the leasing 
program became more accepted as a means to help dewatered 
streams through agreements between willing lessors and MFWP, 
i.e., no one was being forced to lease water 

j^ Later Successes 

X</fWP has investigated about 85 potential water leases to 
date. Most were not pursued because the water rights were too 
small to help the stream, located in the wrong place, had a poor 
priority date, appeared to be a invalid, had too short a period 
of use, had questions about abandonment, or leasing them 
would have known adverse effects on other users. DFWP has 
sought and received approval from DNRC for the ten leases 
described below. All of them are on smaller tributary streams 
to larger rivers that will improve fish spawning and reproduc- 
tion in the larger rivers. 

1 . Mill Creek, tributary to the Yellowstone River near Pray, 
Montana (August, 1992): The lessor is Mill Creek Water and 
Sewer District and involves 48 individuals and 95 different water 
rights. The lease is a result of a water conservation resulting 
from the conversion of three inefficient ditch systems used for 
(lood irrigition to a gravity pipeline and sprinkler system which 
irrigates the same lands more efficiendy. It provides a once per 
year 48-60 hour flow of up to 65 cfs. 

2. Mill Creek (October 1992): The lease is with a single in- 
dividual and also results from the water conservation project 
Both Mill Creek leases will improve spawning conditions for 
cutthroat trout that migrate from the Yellowstone River The 
48-60 hour (low occurs in August to flush young cutthroat trout 
from Mill Creek to the Yellowstone River 

3. Blanchard Creek, a small tributary in the Blackfoot River 
basin in western Montana (August, 1993): This lease is with 
a single individual on Blanchard Creek. MFWP leases irriga- 
tion water by paying the rancher to pasture his cattle elsewhere 
when streamdows drop to an agreed level. Rainbow trout 
spawning and young fish production have already improved 
as a result of this lease. 

4. Tin Cup Creek, a spawning tributary to the Bitterroot River 
in western Montana (October 1994): This lease is with six indi- 
viduals holding water rights on an irrigation ditch from Tin 
Cup Creek. DFWP pays for leaving all six water rights in the 
creek below the diversion point. The lease is expected to 
improve flows for rainbow trout that migrate from the Bitter- 
root River to spawn in the creek. 

5. Cedar Creek, a tributary to the Yellowstone River (Decem- 



ber 1993): The lessor is the U.S. Forest Service which had pur- 
chased private ranch near the north entrance to Yellowstone 
National Park for elk habitat. The Forest Service continues to 
irrigate some of the ranch lands, and has leased some unused 
rights to DFWP for instream flow to improve Yellowstone cut- 
throat trout spawning in Cedar Creek. The lease agreement was 
completed in December 1993, but the lease was not imple- 
mented until 1996 due to objections from water users. 

6. Hells Canyon Creek, a Jefferson River tributary (August, 
1995): This lease is the result of converting a flood irrigation 
system to a gravity pipeline sprinkler system. It involves three 
individuals who irrigate from Hells Canyon Creek The new 
system was completed in the fall of 1995, and the lease became 
effective during the 1996 irrigation season. The lease is expected 
to improve rainbow trout spawning and reproduction in the 
creek that will improve the fish population in the Jefferson River 

7. Mill Creek (August, 1995): The lessor is the third individual 
on Mill Creek who is also on the pipeline, and DFWP leases 
his salvaged water The agreement was completed in August, 
1995 and was implemented in 1996. 

8 Cottonwood Creek on DFWft Blackfoot-Clearwater Wild- 
life Management Area (October 1996): This lease involving only 
DFWP water rights was accomplished under the new upper 
Clark Fork River Basin leasing study. DFWP rights on Cotton- 
wood Creek were converted to instream flow through a water 
conservation project that lined the Dryer Ditch, a major diver- 
sion that previously dewatered a portion of the creek. 

9. Chamberlain Creek, a tributary of the Blackfoot River up- 
stream from Cottonwood Creek (October 1996): The lessor 
is a private landowner who no longer wishes to irrigate. Water 
is left instream for westslope cutthrout trout. 

10. Pearson Creek, also a tributary of the Blackfoot River near 
Chamerlan Creek (October 1996): The lessor is the same private 
landowner as in the Chamerlan Creek lease. 

Of the ten leases issued to date, objections were filed in the 
DNRC water rights change process for two change applications. 
Cedar Creek and Tin Cup Creek. No objections were received 
on the other eight leases. 

^ The Future OF Leasing 

Z Ajiontana's leasing program is still in its infancy. More in- 
terest in leasing is developing as the original concerns subside 
and word spreads that leasing is not the bogeyman it was first 
thought to be and people learn that the change process pro- 
tects those who believe a lease will affect their water rights. 

MFWP is currently investigating several other potential 
leases. These are also on tributary streams to larger rivers and 
would either improve spawning for these rivers or would im- 
prove the habitat for fish that reside in the smaller streams year- 
round. MFWP will continue to pursue leases in a careful but 
deliberate manner that will improve fish habitat, fish popula- 
tions and fishing opportunities. 

Water leasing will not solve all of Montana's stream dewater- 
ing problems because of the complexity of obtaining leases, 
the small quantities of water that are usually involved and the 
potential effects on existing water users. However, it is one tool 
to help balance the competing uses of a finite water resource. 

Liter E Spence 
Montana Fish, Wildlife and Parks 






Dmmitream face of 
Flint Creek Dam, 1953 



East Fork Reservoir 

(continued jrom page 2) 

F^ce Construction was hired to in- 
spect the danils drainage system. The 
drains were inspected using a robotic 
video camera. The drains had to be 
(lushed and cleaned to accomplish 
this process. In addition, the first 40 
feet of the main drain had to be ex- 
posed and removed requiring the ex- 
cavation of 6,000 cubic yards of ma- 
terial. The investi^tions determined 
that the culvert portions of the dam's 
main drainage system had reached 
the end of their useful life, and that 
migration of fine materials was lim- 
ited to a fairly small area about 90 
feet up the main drainage culvert 
which is directly under the sinkhole. 

All earthen dams leak. Small amounts of water ft-om the reser- 
voir seep slowly through the pore spaces between the clays, silts, 
and other earthen materials which make up the dam. The core 
of an earthen dam is made of clay materials. The clay core holds 
most of the water behind the dam and dramatically reduces 
seepage. Earth materials on the downstream side of the core 
are much larger and are intended to provide mass, support, and 
strength to the dam. The downstream fill is typically designed 
to be much more permeable than the core. Because water acts 
as a lubricant between soil particles and allows them to move 
more easily water must be removed from the downstream por- 
tion of the dam to keep it strong and stable. 

To remove water from its pervious downstream side, the 
original 1936 to 1938 construction of East Fork Dam included 
a "drain trench system" under the downstream embankment. 
The trenches were filled with rock and tied to a twelve-inch 
perforated culvert main drain. This design allows seepage 
water to be collected in the rock-filled trenches and then 
conveys it to the perforated culvert. The main drain culvert 
then carries the water out of the dam's embankment. This 
drainage system is not direcdy connected to the water stored 
behind the dam. 

Identifying the aging drains as the problem was essentially 
good news. The dam remains basically sound. Overall dam struc- 
tural condition is good. The drainage parts which control seepage 
are all repairable strucmres. Rehabilitation expenses are signifi- 
cant but not prohibitive -approximately $1.4 million. 

/xehabilitation of East Fork Dam includes five components. First, 
several repairs will directly reduce and control seepage through 
the dam. The entire length of the main drainage culvert will be 
removed. The single main drain will be replaced with three 
heavy duty plastic drain pipes. All of these drains will connect 
to a portion of the dam's existing internal rock fill drainage 
system. A chimney drain -a vertical wall of very porous materials 
-will be constructed in the upstream portion of the embank- 
ment as previously excavated materials are replaced. The chim- 
ney drain will intercept seepage and transport it downward into 




the existing drainage system. Again, this will aid in keeping the 
embankment dry. Another sub-surface drain will be installed 
in the dam's east groin. Finally, an existing culvert in the dam's 
west embankment will be fined and reinforced in place, using 
a specialty plastic. This will dramatically improve die sttength 
and life of a drain which capmres a spring and carries the water 
through the dam. 

Second, wells drilled during the evaluation phase have been 
converted to permanent monitoring wells. These will be used 
to evaluate and monitor seepage into and through the dam and 
its foundation. The wells will enable engineers and dam operators 
to evaluate the effectiveness of repairs. They will also provide 
operators the tools necessary to regularly monitor seepage con- 
ditions, identify changes in seepage, and potentially act as an 
indicator of changing dam conditions. 

Third, to reduce the water pressure in the dam's foundation, 
ten drainage wells will also be installed. These wells will be drilled 
just below the existing toe of the dam and will be completed 
in the foundation and bedrock material. Like the drains they 
will remove seepage water and therefore maintain stability of 
dam's foundation. 

Fourth, an additional earth berm will be added to the toe 
of the existing dam. Engineers determined that this relatively 
inexpensive addition to the dam's downstream embankment 
would significantly strengthen the dam and improve its long term 
safety. 

Fifth, test pits above the dam indicated a need to rehabifitate 
the impervious clay blanket adjacent to and upstream of the 
dam's east abutment. The existing blanket will be exposed, 
rehabilitated, and thickened with an additional sixteen inches 
of clay and then covered with a thicker protective layer of native 
material. 

East Fork Dam rehabilitation is now underway Construction 
is scheduled to be completed in November of this year This 
schedule is aggressive, but attainable. DNRC is committed to an 
East Fork Dam rehabilitation project that provides for the safety 
of Rock Creek residents and ensures the long-term viability of 
a significant Clark Fork basin water storage site. 



Upper Clark Fork River Basin 
STEERING COMMITTEE 



<_ 



AudriiyAspholm 
400 Elm St. 
Anaconda, MT 58711 
563-6949 

Senator Tom Beck, Rancher 
651 Greenhouse Rd. 
Deer Lodge, MT 59722 
846-2452 

Bob Benson 

dark Fork-ftnd Oreille 

G)alition 
2325 \yiey Drive 
Missoula, MT 59801 
549-1426 

Senator Vivian Brooke 
1610 Madeline Ave. 
MissouU,MT 59801 
728-3438 

Scon Brown 
USEnvironmental Protection 

Agency 
Federal Bldg.. Drawer 10096 
Helena, MT 59626 
449-5720X-259 

Robin Bullock 
ARCO 

307E.ParkSt.,Suite301 
Anaconda, MT 59711 
563-5211 



Jim Dinsmore 

Granite G>nservation District 

& Rancher 
PO. Box 224 
Hall, MT 59858 
288-3393 

Bruce Farunc 
Montana Trout Unlimited 
PO Box 7593 
MissoukMT 59807 
543-0054 

HouY Franz 

Montana Bower Company 

Gough, Shanahan, et al. 

PO Box 1715 

Helena, MT 59624-1715 

442-8560 

Steve Fry 

Washington Water Power Qimpany 

PO. Box 3727 

Spokane, WA 99220 

(509)482-4084 

Gary Ingman 
Montana Depanment of 
Environmental Quality 
Gipitol Station 
Helena, MT 59620 
444-1420 

REPKESENTATIVh DON LaRSON 

PC. Box 285 

Seeley Lake, MT 59868 

677-2570 



Eugene Manley 

Flint Creek Valley & Montana 

Water Users Association 
15 Willow Tree Lane 
Hall, MT 59837 
288-3409 

Brent Mannix 
BigBlackfoot Rancher 
2434 Highway 141 
Helmville.MT 59843 
793-5857 

CuRF Martin 

Montana Department of 

Natural Resources& 

Conservation 
RO. Box 5004 
Missoula, MT 59800 
721-4284 

BillMosier 

Deer Lodge Valley Rancher 

371 Freezeout Lane 

Deer Lodge, MT 59722 

846-2828 

JimCQuigley 

Little Blackfoot Rancher 

Sunset Ranch 

Box 256 

Avon, MT 59713 

492-6542 



Tom Sanders 

Rock Creek Rancher 

1691 Rock Creek Road 

Philipsburg.MT 59858 

859-3345 

JohnSesso 

Butte/Silverbow Planner 
155West Granite 
Butte, MT 59701 
723-8262 

Representative Lz Smith 
311 Freezeout Lane 
Deer Lodge, MT 59722 
846-1763 

OleUeland 

Silverbow Rancher 

R.R.3 

Silver Bow, MT 59750 

782-6190 

Dennis Workman 

Montana Department of Fish. 

Wildlife & Parks 
3201 Spurgin Road 
Missoula, MT 59801 
542-5500 

Gerald Mueller, Facilitator 
7 165 Old Grant Creek Road 
Missoula, MT 59802 
543-0026 



c 



NORTHERN LIGHTS INSTITUTE 
Clark Pork Steering Committee 
RO. Box 8084 
Missoula, MT 59807-8084 



Non-Pro fit Organization 

US Postage 

PAID 

Missoula, MT 59801 

Permit* 74 



HftROLD L. CHftMBERS 
MONTANA STATE LIBRARY 
1515 E. SIXTH AVENUE 
HELENA MT 596£0 



<t: 






Montana State Librai 



3 0864 1004 6235 



THE UPPER CLARK FORK 



VOLUME 3 NUMBER 1 




STATE DOCUMENTS COLLEC 

FEB Or 1998 




i )l^ 



iL, 



'Ulf 



i MONTANA STATE LIBRARY 
1515 E. 6th AVE. 
HELENA. MONTANA 59520 



In This Issue 



m. 



' ith this issue, the Upper Clark Fork River Basin Steer- 
ing Committee marks its third cycle of local planning and 
management of the waters of the upper Clark Fork River 
basin via a partnership between local water users and govern- 
ment water managers. The Steering Committee has several 
new members appointed in a new way — by the basin's six 
conservation districts and six county commissions. The previ- 
ous Steering Committee successfully requested the Montana 
Legislature to change the method of appointment so that a 
majority of its members would be selected by and account- 
able to the units of government closest to the basin's residents. 
The list of the twenty-two members, together with their tele- 
phone numbers and addresses, and the entity that appointed 
them is found on the back page. 

This issue also covers the beginning of a new state pro- 
gram critically important to all Montana water users — the state's 
"TMDL" or "Total Maximum Daily Load" program. As ex- 
plained by Kathleen Williams of the Legislative Environmen- 
tal Policy Office, through the TMDL effort, the state will de- 
termine which Montana streams and lakes have water quality 
problems and take steps to clean them up. Gary Ingman, Steer- 
ing Committee member and Department of Environmental 
Quality (DEQ) Water Monitoring Bureau Chief, has reported 
that the state intends to pursue a voluntary, partnership ap- 
proach to identifying and cleaning up waters with quality prob- 
lems. DEQ is directed by statute to work with local watershed 
groups such as the Steering Committee to implement this 
program. Over the coming months, the Steering Committee 
win be considering whether and how to become involved 
with identifying basin waters with quality problems and with 
developing plans to address them. 

The Steering Committee is at work to produce a work 
plan that will guide its water planning and management ef- 
forts over the next three years. Coming issues will cover this 
work plan as well as basin water topics such as the Fhnt Creek 
return flow study being conducted by the Bureau of Recla- 
mation, DNRC, and Flint Creek water uses. 



What! Not 
Another Acronym 



By Kathleen Williams, Resource Policy Analyst 
Legislative Environmental Policy Office 

excerpted Jwm THE INTERIM, September 1997 
published by the Motttarta Legislative Services Division 



D„ 



'uring the 1997 Legislative Session, House Bill No. 546 
added yet another acronym to the Capitol parlance — "TMDL" 
or "Total Maximum Daily Load." One of the major pieces of 
natural resource-related legislation passed by the 55th Legisla- 
ture, HB 546 provided more explicit direction to Montana's 
Department of Environmental Quahty (DEQ) on how to 
implement a major directive of the federal Clean Water Act 
essentially, determine which Montana streams and lakes have 
water quality problems and take steps to clean them up.TMDLs 
are tools states can use to address these problems and they will 
likely be the topic of water quality discussions in Montana for 
years to come. But first, some background. 

TMDLS ANDTHE FEDERAL CLEAN WATER ACT (CWA) 

As with many states' environmental laws, Montana water 
quality pohcy is heavily influenced by federal law and regula- 
tions. For example, before a state can issue permits for pollut- 
ant discharges into its rivers, it must develop a program that 
meets Environmental Protection Agency (EPA) requirements. 
The state is then "delegated' the responsibility for issuing pol- 
lutant discharge permits; if a program is not delegated, EPA 
retains the responsibility to issue the permits. 

A primary purpose of the federal Clean Water Act is to "re- 
store and maintain the chemical, physical, and biological integrity 
of the Nation's waters."Though it "recognizes, preserves, and pro- 
tects" states' responsibilities in water quality protection and re- 
source planning and development, it assigns overaD administra- 
tion of the Act to the federal Environmental Protection Agency. 

The Act requires states to adopt water quahty standards 
(WQSS) for the protection of surface water quality. Water qual- 



ity standards are set based upon the conditions necessary to sup- 
port the "beneficial uses' assigned to a water body — those uses 
the water should support. For example, the beneficial uses as- 
signed to the Bighorn River (above Hardin) are: drinking and 
food processing (after conventional water treatment); water con- 
tact recreation; support of cold-water fish species, other aquatic 
life, waterfowl, and fiirbearers; and agriculture and industry. The 
water quality standards set to support these uses address changes 
fixsm natural conditions for such parameten as coliform, dis- 
solved oxygen,pH, turbidity (lack ofclarity), temperature, color, 
toxics, and other detrimental or harmfiil substances. 

Changes in water quahty from natural conditions typically 
emanate fixim either point-source (PS) discharges or non-point 
source (NPS) discharges. Point-source discharges are from an 
identifiable entry point (e.g. sewage treatment plant pipe, ca- 
nal, etc.); non-point sources are those that carry pollutants into 
waters from broad expanses of land (i.e. not a specific point). 
Inputs fix)m agricultural operations and timber harvest activi- 
ties are often non-point sources of water pollution. Point-source 
discharges are controlled through the states discharge permit 
program. NPS discharges are addressed through encouraging 
voluntary use of certain practices determined to reduce water 
quahty impairments.These are termed "best management prac- 
tices," or BMPs. 

Examples of forestry BMPs included: crossing streams at 
right angles, sizing permanent culverts larger than 15 inches 
in diameter, and avoiding skidding over drainage areas. 

Section 303(d) of the federal Clean Water Act and related 
regulations require states to assess the condition of the state's 
waters to determine if their quahty is "impaired" (does not 
meet standards) or "threatened" (is likely to violate standards 
in the near fiiture).The result of this review is often called the 
"303(d) hst," which must be submitted to EPA every other 
year. Section 303(d) also requires states to prioritize and target 
water bodies on their hst forTMDL development, and to de- 
velop TMDLs for impaired and threatened waters. 

In theory, a TMDL is first a determination of which land 
use is contributing what to water quahty conditions in an 
impaired (or threatened) segment, both point-sources and non- 
point sources. The calculations must also define and account 
for natural background water quahty conditions. Once those 
calculations are made, all contributors are assigned an allow- 
able share of the pollutant load that they can discharge. The 
assignments must incorporate necessary reductions in the pa- 
rameters causing the segment to be classified as "impaired," 
Some dischargers may wish to "trade" portions of their alloca- 
tions with other dischargers, which is aUowed. The "total maxi- 
mum daily load" (TMDL), then, is the total loading of certain 
pollutants that the water body can accommodate without ex- 
ceeding water quahty standards — it's the total above natural 
conditions that (theoretically) gets divvied up among discharg- 
ers to an impaired or threatened water body. 

A hypothetical (and extremely simphfied!) example may 
be helpful: 

Acronym Creek, located near the pastoral (but growing) com- 
munity of Abbreviation, Montana, has been assigned the same 
beneficial uses as the Bighorn (see preceding text), and water 
quality standards have been set accordingly. Land uses affecting 
water quality of the South Fork of Acronym Creek include cattle 
ranching, residential subdivisions on septic systems, a small in- 
dustrial plant, and a small waste treatment plant. The town of 
Abbreviation draws its drinking water fi-om Acronym Creek. 



According to Montana's 303(d) list, water quality in (hy- 
pothetical) Acronym Creek is "impaired" due to excess tem- 
perature and "threatened" due to increasing turbidity. Con- 
tributors to increased temperature have been determined to 
be a combination of riverfront residents removing streamside 
vegetation to improve views, the industrial plant's discharge 
of its cooling process waters, and water withdrawals. In some 
locations, summertime water temperatures have exceeded 75°F, 
which can be lethal to trout. Turbidity is beginning to affect 
the ability offish to feed. High temperatures are contributing 
to increased algal and weed growth, requiring the Town's one 
maintenance worker to continually travel to the water plant 
to clean weeds and algae fi-om the intake. 



THE Montana Situation- 
Setting the Stage for HB 546 

So, where do we stand in Montana with regard to the man- 
date of Section 303(d) of the federal Clean Water Act —to assess 
and address impaired and threatened waters? Frankly, we are some- 
what better on the "assessing" than the "addressing". Montana's 
1 996 303(d) list submitted to EPA included about 900 water bodies 
that had been determined to be impaired or threatened. 

Despite the length of the hst, as of 1 996, only one compre- 
hensive TMDL had been all completed in Montana (though sev- 
eral were in progress). One compUcation was that DEQ was un- 
certain whether they had sufficient state statutory authority to 
aggressively pursue TMDL development in Montana, and even if 
they did, they lacked the resources to do so. In 1992, seven water 
bodies had been targeted forTMDL development by 1994. In 
1994, all seven were still on the targeted list. 

And these issues were not unique to Montana. As of 1996, 
the EPA was being (or had been) sued in 16 different states 
based on aUegations they had shirked their responsibihties un- 
der 303(d) to ensure states moved forward in water quahty as- 
sessment and TMDL development. EPA was scrambhng to de- 
fend itself, setde lawsuits, and make some moves nationally to 
provide greater assistance to states. 

At the same time, long-time concerns were again voiced in 
Montana over whether so many Montana water bodies really 
deserved to be called "impaired" or "threatened."What crite- 
ria were used to make that decision? Were there real "data" to 
support the conclusion or was it based on "windshield sur- 
veys"? Was the state on shaky ground legally if they continued 
to issue discharge permits on "impaired" streams when TMDLs 
hadn't yet been developed? Big questions. 

The Montana DEQ had achieved more than many other 
states involved in TMDL-related lawsuits. After all, Montana 
had made comprehensive efforts on the "assessment" end. Other 
states hadn't gotten that far, and the DEQ had been making 
efforts at water quahty improvement through means other than 
TMDL development for years. 

So what happened? In early fall of 1996, the Western Envi- 
ronmental Trade Association sponsored a forum on these issues 
and produced a related Position Paper on TMDL development 
in Montana. The paper (together with a briefing paper and al- 
ternatives analysis prepared by DEQ) provided a starting point 
for a DEQ-sponsored collaborative effort to draft a legislative 
proposal to address issues surrounding the 303(d) "hst" and what 
went on it,TMDL development, and all the decisions surround- 
ing the priorities, method, and coordination involved in imple- 
menting this mandate of the Clean. Water Act. Many hoped that 
successfijlTMDL legislation would illustrate that Montana was 



committed to moving forward onTMDL development. If so, 
maybe a lawsuit wouldn't be filed, or, if one were, the court 
might resolve a suit in a manner that retained state autonomy 
to develop TMDLS. 

But on December 2, 1996, what some might have considered 
inevitable happened. EPA received notification of intent to sue 
over lack of TMDL progress in Montana. EPA was now in a 
similar defensive position in Montana, as it had been in Ohio, 
Kansas,Washington, New York, Georgia, Alaska, Minnesota, Idaho, 
and others. 

The increased potential for a lawsuit added urgency to efibrts 
to address TMDL issues in Montana. If a suit were successfiJ.EPA 
might be forced by the court to develop TMDLs for Montana; 
the state would lose authority and EPA had paltry resources to 
dedicate to such a mandate. The result could be the top-down, 
heavily regulatory, federal solution to water quality issues in Mon- 
tana. Not very desirable firom a state autonomy point of view! 
The lawsuit was filed against EPA on February 28, 1997. 

The DEQ collaborative effort succeeded in airing many of 
the concerns of the spectrum of parties that participated. Many 
compromises were made and issues addressed, but there was 
not "consensus ' on the result before it had to move into the 
bill drafting stage at the Legislature in late January. Several 
revisions were incorporated during the drafting stage, and a 
few amendments during the hearing process, but the bill pro- 
ceeded through the Legislature and went to the Governor 
relatively unchanged from its introduced version. Other bills 
authorized approximately $2 million in former and new fund- 
ing, as well as 9 new positions (FTEs), to dedicate to the ef- 
forts covered in HB 546. 

HB 546— More Than an Acronym 

HB 546 was requested by Sen. Grosfield and sponsored by 
Rep. Tash. What did it do? In general HB 546: 

• defined the terms necessary to move forward in TMDL devel- 
opment and provided stronger legal authority to do so; 

• required the state to monitor state waters to accurately assess 
their quality and to develop TMDLs for impaired and threat- 
ened waters; 

• set procedures on how to determine whether "sufficient cred- 
ible data" was used in developing the 303(d) list, required that 
waters lacking such data be removed fix>m the list by October, 
1999, and allowed persons to petition DEQ to add to or re- 
move a water body from the Ust; 

■ required DEQ to consult with local watershed advisory groups 
and conservation districts in developing and revising the list 
and in developing TMDLS, set up a statewide advisory group 
to advise on prioritization, and set out criteria to be used in 
determining priorities for TMDL development; 

• specified that TMDL development must include quantified 
load allocations for point source discharges and development 
of voluntary Best Management Practices (BMPS) for non- 
point sources; 

• required monitoring of the success of TMDL strategies and 
reevaluation of the approach if water quahty standards are not 
achieved on waters with TMDLs within 5 years; and 

• provided a 1-year time frame to determine how to develop 
necessary TMDLs, and a 10-year time fi^me to do it. 

Quite a charge, but also a strong message that the Legislature 
was serious about addressing the TMDL issue in Montana. 
So how might our hypothetical Acronym Creek be aflfected 



by HB 546 implementation?Though extremely simplified (and 
very optimistic!), one scenario might be as follows: 

Due to growing concern over the water quality in Acro- 
nym Creek, local residents, representatives of the local conser- 
vation district, and some town officials had recently started 
meeting to discuss what might be done. With the passage of 
HB 546 and because Montana's 303(d) list showed Acronym 
Creek as a high priority for TMDL development, DEQ staff 
contacted these folks and offered their assistance with finding 
solutions to the temperature and turbidity problems. 

State water quality staff traveled to Abbreviation, reviewed 
the condition of the Creek, took water quality samples, and 
met with residents and others regarding potential solutions. 
They calculated estimates of the share of the pollutant loading 
that might be attributable to certain land uses, and determined 
how much the total loading might have to be reduced to bring 
the Creek back into compliance with water quality standards. 

After several meetings among residents and state and local 
officials, it was determined that if half of the total length of the 
currently denuded stream banks could be revegetated, tempera- 
ture fluctuations might be reduced over a period of a few years 
to the point of compliance with standards. Since the vegetation 
might also hold more sediment in place, the turbidity should 
also be reduced, thereby resolving that problem automatically. 

The owner of the ranching operation agreed that if 
plantings were of no cost to him, and he was successful in 
getting a grant to fence off his cattle fi-om all but select por- 
tions of the Creek, the revegetation could occur along bare 
portions of his creek frontage. Several residential property 
owners agreed to include their creek fi-ontage in the revegeta- 
tion project, too. 

DEQ and the conservation district helped to develop an 
affordable planting list (mostly willows) and mapped the loca- 
tions for revegetation. They documented the calculations and 
solution as Acronym Creek's TMDL, and the Creek was re- 
moved from the 303(d) hst. 

The following spring the conservation district sponsored 
the willow slip cutting and planting and a town potluck in the 
park afterwards. Monitoring over the following two years 
showed that temperature fluctuations had decreased, and the 
water intake was less problematic. Kids were catching more 
fish in the Creek, too. 

Current and Future Challenges . . . 

HB 546 addressed many issues brewing in Montana in 1996. 
But, many still remain, and the bill itself created its own chal- 
lenges. For example, the issue of how to determine when a 
water body meets or doesn't meet standards; does one 
exceedence during a flood or drought event automatically 
quahfy it as impaired? Also, petitions are already coming in to 
dehst waters. HB 546 gives DEQ 60 days to answer a petition, 
and answers require analysis. And, if much of the emphasis is 
on a locally driven, voluntary approach, is that consistent with 
the mandate to get the job done in 10 years? There will be 
increasing numbers of TMDLs to monitor and evaluate; lots 
of coordination which needs to happen; a statewide advisory 
group that needs to be staffed; a big state; a starting list of 
900+ TMDLs that need to be done; multiple issues for each 
water body; and the lawsuit. 

Many challenges loom. As one DEQ staffer put it, the great- 
est challenge in HB 546 implementation is "finding efficient 
approaches to TMDL development that get the job done water 
quality-wise, achieve a high level of local buy-in, and are politi- 
cally correct, cost-effective, and minimally burdensome on land- 
owners (financially, cidturally, and otherwise)." 



New Steering Committee Appointed 

X ursuant to legislation passed by the last Montana Legislature, the members of the Upper Clark Fork River 
Basin Steering Committee have been re-appointed. Entities making the appointment were the basin's six 
conservation districts, six county commissions, and the Director of the Montana DNRC. The members and 
the constituency or area they represent along with the entity that appointed them (noted in italics) include: 



Audrey Aspholm 
400 Elm St. 
Anaconda, MT 58711 
563-6949 
Anaconda-Dter Lodge 

Bob Benson 

Clark Fork-Pend Oreille Coalition 

2325 Valley Drive 

Missoula, MT 59801 

549-1426 

DNRC Director 

Robin Bullock 

ARCO 

307 E. Park St., Suite 301 

Anaconda, MT 59711 

563-5211 

DNRC Director 

Jim Dinsmore 

Hall Rancher 

P.O. Box 224 

Hall, MT 59858 

288-3393 

Granite Conservation District 

Kevin D. Feeback 

P.O.Box 1117 

Lincoln, MT 59639 

362-4823 

hewis and Clark Conservation District 



HouY Franz 

Montana Power Company 

Cough, Shanahan, et. al. 

P.O.Box 1715 

Helena, MT 59624-1715 

442-8560 

DNRC Director 



Commissioner. 
Michael J. Griffith 
City County Building 
RO.Box 1724 
Helena, MT 59624 
447-8304 
LeuHs and Clark County 

Laurel L. Holsman 

20005 Lackman Loop 

Frenchtown, MT 59834 

626-2484 

Missoula Conservation District 

Gary Ingman 
Montana Department of 

Environmental Quality 
Capitol Station 
Helena, MT 59620 
444-1420 
DNRC Director 

Commissioner 

Michael Kennedy 

200 W. Broadway St. 

Missoula, MT 59802-4292 

523-4902 

Missoula County Commission 

Eugene Manley 

Hint Creek Valley 

1 5 Willow Tree Lane 

Hall, MT 59837 

288-3409 

Granite County Commission 



Brent Mannix 

Big Blackfoot Rancher 

2434 Highway 141 

HelmviUe, MT 59843 

793-5857 

North Powell Conservation District 

Representative Doug Mood 

Vice President 

Pyramid Mountain Lumber 

RO. Box 42 

Seeley Lake, MT 59868 

677-2291 

DNRC Director 

Jim C. QuiGLEY 

Litde Blackfoot Rancher 

Sunset Ranch 

Box 256 

Avon, MT 59713 

492-6542 

DNRC Director 

Steve Schombel 
Trout Unlimited 
2200 Applewood Lane 
Missoula, MT 59801 
721-4686 
DNRC Director 

John Sesso 

Butte/Silverbow Planner 
155 West Granite 
Butte, MT 59701 
723-8262 
Butle/Silverbow 



Representative Liz Smith 
311 Freezeout Lane 
Deer Lodge, MT 59722 
846-1763 
DNRC Director 

OLE UELAND 

Silverbow Rancher 

R.R.3 

Silver Bow, MT 59750 

782-6190 

Mile High Conservation District 

John Vanisko 

Deer Lodge Valley Rancher 

1311 Bowman Road 

Deer Lodge, MT 59722 

693-2360 

Deer Lodge Conservation District 

Jules Waber 

Powell County Superindent 

of Schools 
821 West River Road 
Deer Lodge, MT 59822 
846-3680, extension 32 
Powell County Commission 

Dennis Workman 
Montana Department of Fish, 

Wildlife & Parks 
3201 Spurgin Road 
Missoula, MT 59801 
542-5500 
DNRC Director 

Gerald Mueller 

Facilitator 

7165 Old Grant Creek Road 

Missoula, MT 59802 

543-0026 



Northern Lights Institute 

Clark Fork Steering Commmittee 

P.O. Box 8084 

Missoula, MT 59807-8084 



Non-profit Organization 

US. Postage 

PAID 

Missoula, MT 59801 

Permit #74 



HAROLD L. CHftMBERS 
MONTftNA STATE LIBRARY 
1515 E. SIXTH AVENUE 
HELENA MT 596£0 



333.91 
M26ufcw 
Vol.3, No. 2 



Montana Stale Library 



3 0864 1004 6234 3 



THE UPPER CLARK FORK 

'VCterNews 



STATE DOCUMENTS COLLECTION 

NOV 7 , 1998 

^MONTANA STATE LIBRARY 
5th AVE. 

JA 59620 



VOLUME 3 NUMBER 2 



In This Issue 



J. his issue addresses three topics of concern to Upper Clark 
Fork Basin water users: the hsting of the bull trout as a threat- 
ened species, TMDL (water quality management plan) devel- 
opment, and the pending settlement of the Natural Resource 
Damage law suit brought by the State of Montana against 
ARCO. Ken MacDonald, DFWP s Bull Trout Coordinator, 
explains what the recent listing of buU trout as a threatened 
species under the federal Endangered Species Act will mean 
for Montanans.The Montana Attorney General's Office sum- 
marizes the provisions of the settlement agreement pending 
before the federal court in the State's natural resource damage 
law suit against ARCO. And finally, Gerald Mueller, Upper 
Clark Fork River Basin Steering Committee's facilitator, re- 
ports on the Steering Committee's activities regarding the 
development of water quahty (TMDL) plans. 

There have been several changes in to the membership of 
the Steering Committee since the last issue of Water News. 
Three members — K.D Feeback, Laurel Holsman, and Dennis 
Workman — have either retired or left the basin. The new steer- 
ing committee members are Martha E. McClain, representing 
Missoula Conservation District, Susie Peraino representing 
Rock Creek, and Don Peters representing the Montana De- 
partment of Fish, Wildlife and Parks. 



Bulltrout Listing 

What Does It Mean? 



By Ken MacDonald 
MDFWP BuU Trout Coordinator 



A 



Ls of July 10, 1998, buU trout throughout the Columbia 
River Basin are classified as threatened under the Endangered 
Species Act (ESA). This includes bull trout populations in 
Washington, Oregon, Idaho, and Montana. When a species is 
listed as threatened under the ESA, it receives protection from 
"take."Take means to harm, harass, pursue, kill, or to attempt 
to do such things. These are further defined to include pro- 
tection of habitat used by the species. In the rule hsting buU 
trout as threatened, the following items were identified as take: 




■ Take of bull trout without a permit, except in accordance 

with applicable state fish and wildlife regulations. 

■ Introduction of non-native fish species that compete with, 
prey on, or hybridize with bull trout. 

■ Destruction or alteration of bull trout habitat by dredging, 
channelization, diversion, instream vehicle operation, or rock 
removal. 

■ Discharges or dumping of toxic chemicals, silt, or other 
pollutants into waters supporting buU trout that result in 
death or injury to the species. 

■ Destruction or alteration of riparian or lakeshore habitat 
and adjoining uplands of waters that support bull trdut by 
timber harvest, grazing, mining, hydropower, development, 
or other developmental activities. 

This hsting means that bull trout will receive greater pro- 
tections than state regulations provide, and that the State no 
longer has primary management authority for buU trout. Any 
projects that may result in take of bull trout or habitat must be 
authorized by the U.S. Fish and WildUfe Service. Even man- 
agement and restoration activities undertaken by the Mon- 
tana Department of Fish, Wildlife, and Parks must first be au- 
thorized if they may result in take. The only exception is take 
of buU trout in accordance with state fishing regulations. Ex- 
isting state fishing regulations are recognized as being suffi- 
cient to protect bull trout, and so recreational angling will not 
be further impacted. Land management activities in bull trout 
habitat likely will be more restricted. 

Despite the listing. Governor Racicot's Bull Trout Resto- 
ration Team will complete the BuU Trout Restoration Plan, 
which they have been working on since 1994. The plan, which 
is about to be released for pubUc comment, includes a restora- 
tion goal, provides guidance for conservation of populations 

continued insidet^ 



1 I 









P> continued from front 

that are stable or increasing, and recommendations for restora- 
tion of populations that have declined. The intent of the Res- 
toration Team is that the plan be used by local watershed groups, 
management agencies, and private landowners as a guideline 
to protect, and where necessary, restore, bull trout populations. 
The Restoration Plan is intended to be implemented volun- 
tarily at the local level, and was intended to negate the need 
for more rigid regulatory processes such as those that come 
with ESA listing. Montana is disappointed that state-led res- 
toration efforts were not given an opportunity to succeed, and 
that ESA listing occurred. However, now that listing has oc- 
curred, we hope Montana's Restoration Plan will be used by 
the U.S. Fish and Wildlife Service as the basis for the Montana 
portion of a federal recovery plan, and that adherence to its 



recommendations will reduce the chances for take, and thus 
reduce the need for federal authorization to initiate projects. 

The goal of the Governor's restoration plan, like that of the / 
ESA hsting, is to protect and recover one of Montana's native 
trout species. Although there is disagreement about how to 
best accomplish that goal, it remains a worthy one. The State 
will continue its efforts to restore bull trout, regardless of ESA 
listing. Where state authority is lacking or inadequate, the 
federal listing will provide additional protections for bull trout. 
For example, federal land management agencies such as the 
U.S. Forest Service are now required to ensure their land man- 
agement activities do not jeopardize bull trout populations. 
We hope that this listing will be applied in a reasonable and 
realistic way, and that Montana's leadership in restoration and 
management of bull trout will be recognized. 



MONTANA V. ARCO 

Summary of June 19, 1998, Partial Settlement 



c 



dose Background -.The State of Montana filed suit against the 
Atlantic Richfield Company (ARCO) in 1983 seeking dam- 
ages for injury to natural resources in the Upper Clark Fork 
River Basin (UCFRB), contending that water, land and wild- 
life resources in the UCFRB had been harmed by years of 
mining and smelting. The State sought both restoration dam- 
ages to return the UCFRB to productive use and compens- 
able damages to repay the State and its citizens for lost use of 
the injured natural resources. 

The case went to trial in March of 1 997 after U.S. District 
Judge Paul Hatfield divided the case into the foUowing phases: 
1) ARCO's liabihty; 2) injury to fish and surface water; 3) injury 
to wildlife, vegetation and soil in the riparian and upland areas; 
4) injury to groundwater; 5) monitory damages to cover resto- 
ration costs; 6) compensable damages for lost use of the re- 
sources; and 7) ARCO's counterclaims against the State. To 
date, the first four phases of trial have been completed. Court- 
ordered settlement talks continued throughout the trial and re- 
sulted in a settlement of some of the State's claims, set forth in a 
consent decree filed with the Court on June 19, 1998. 

Key Terms of the Partial Settlement: ARCO will pay the State: 
1) $118 million for restoration of lost or injured resources in 
the UCFRB and ARCO will transfer to the State $2 million 
in real property along Silver Bow Creek (SBC); 2) $80 million 
for the remediation, or clean up, of the SBC Operable Unit; 
and 3) $15 million to reimburse the State for htigation and 
damage assessment costs incurred through 1997. 

All of the State's claims against ARCO were not settled 
through negotiation of the June 19, 1998 consent decree. There 
are three sites in the UCFRB for which the State retains its 
restoration claims against ARCO. These claims, amounting to 
$206 million in damages alleged by the State, relate to natural 
resource damages for restoration of the Anaconda Uplands area, 
the Clark Fork River, and the Butte Alluvial Aquifer. Accord- 
ing to the State consent decree, these claims will be settled or 



litigated foUowing the issuance of the EPA Records of Decision 
(RODS) for each of the sites. The dates for issuance of these 
three RODs are expected to be September 30, 1998 for the 
Anaconda Uplands, fall of 1999 for the Clark Fork River, and ( 
early 2001 for the Butte Alluvial Aquifer. If the parties do not 
negotiate a settlement of these claims within 60 days of issuance 
of the ROD for each site, a trial date will be set to resolve the 
State's restoration damage claims pertaining to each site. 

The Next Step: The State consent decree, lodged with the 
Court on June 19, 1998, is contingent upon the successful 
negotiation by mid-October of a second consent decree in- 
volving the federal government and other parties. This sec- 
ond decree, the SST OU consent decree, relates primarily to 
the $80 milhon remediation settlement of SBC set forth in 
the State consent decree. A public comment period will fol- 
low the lodging of the SST OU consent decree with the Court. 

Settlement monies for restoration damages will not be trans- 
ferred to the State until after the Court approves both the 
State consent decree and the SST OU consent decree and 
resolves any appeals of these decrees. If the SST OU consent 
decree is successfully negotiated by mid-October, approval of 
both decrees is expected by the end of this year. 

Presently, the State is developing a framework to consider and 
make decisions regarding restoration alternatives in the UCFRB. 
Federal and State law require the State to use any money recov- 
ered in the lawsuit to restore, replace or acquire the equivalent of 
the natural resource or the services provided by the resources that 
were injured or lost due to the release of hazardous substances. 

Questions regarding this consent decree may he directed to: 

State of Montana, Department of Justice 

Natural Resource Damage Litigation Program ( 

131 E. Lockey, RO. Box 201425 

Helena.MT 59620-1425 

(406) 444-0205 



TMDL's AND THE Upper Clark Fork River Basin 



1m 



[ MDL development is coming to the upper Clark Fork River 
Basin. 

The Upper Clark Fork River Basin Steering Committee 
has decided to take on the role of a local watershed advisory 
group set out in Montana's TMDL law, HB 546, which was 
passed by the 1997 Montana legislature and was explained in 
the last issue of this newsletter. By assuming this role, the Steer- 
ing Committee will be able to advise the Montana Depart- 
ment of Environmental Quality (DEQ) concerning the revis- 
ing and reprioritizing of the hst of impaired water bodies in 
the Upper Clark Fork Basin and in developing TMDL's, i.e. 
water quahty plans, for addressing them. The Steering Com- 
mittee has decided to become involved in this effort to fur- 
ther the two goals of its water management plan: 

■ To provide for continued planning and management of the 

waters of the upper Clark Fork River Basin rooted at the 
local level; and 

■ To balance all of the basin's beneficial water uses. 

To guide its water quality planning activities, the Steering 
Committee has adopted a work plan with two objectives. 

303d List :The first objective is the examination by local water 
users of the state's list of impaired or threatened water bodies in 
the upper Clark Fork. The federal Clean Water Act and EPA 
requires the^ state to compile every two years a list of those 
water bodies in Montana that either are not meeting water quality 
standards and are therefore "impaired," or which are hkely not 
to meet the standards and are "threatened."This hst is known as 
the "303d list." The Steering Committee intends to organize 
night meetings in several basin locations (see box) to allow local 
water users to learn about the hst, to understand why their local 
streams are on it, and to identify possible errors in it. 

DEQ staff will attend these meetings with the data underly- 
ing the hst, and local water users will be able to ask questions 
about the data and identify possible data errors. DEQ staff will 
also explain how water bodies can be removed from the hst and 
review the process of developing water quality management 
plans, i.e. TMDL's, for the impaired or threatened streams. 

Pilot Programs: The second objective of this work plan is 
the development of pilot water quahty management plans so 
that local water users and the agencies can learn effective steps 
for developing plans leading to removal of basin water bodies 
from the 303d list. The Steering Committee is in the process 
of selecting a small number of candidate stream segments from 
DEQ's 303d list for immediate development of plans to cor- 
rect the impairment and ehminate the actual or threatened 
non-support of one or more water uses. The Steering Com- 
mittee will meet with the 
candidate stream water us- 
ers and other potential 
partners and cooperators 
to seek their agreement for 
the pilot development. 
The pilots will be run 
on a strictly voluntary 
basis. If the local water 



303d List Meeting Dates, Times, and Locations 

Deer Lodge Valley area streams 

October 29, 1998; 7:00pm 

Deer Lodge Conservation District Office, 1 Hollenback Rd., Deer Lodge. 

Flint Creek and Upper Rock Creek streams 

November 9, 1998; 7:00pm 

Cranite County Museum in Philipsburg. 



by Gerald Mueller 



users are not supportive, development of the water quality man- 
agement plan will not proceed. The Steering Committee does 
not recommend that local water users participate in a pilot un- 
less they see an advantage for doing so. One significant potential 
advantage is the availability of funding from state and/or federal 
agencies to support the pilot plan's water quality improvement 
activities. 

Upper Clark Fork River Basin Streams 
on the 303(d) List 

Upper Clark Fork Sub-Basin 

Clark Fork River Mainstem • Silverbow Creek • Brock Creek 

• Lost Creek • Mill Creek • Mill-Willow Bypass • Modesty 
Creek • Monarch Creek • Mulkey Creek • Peterson Creek 

• Racetrack Creek • Snowshoe Creek • Spotted Dog Creek 

• Telegraph Creek • Tin Cup Joe Creek • Twin Lakes Creek 

• Warm Springs Creek • Dunkleberg Creek • Litde Blackfoot 
River • Threemile Creek • Willow Creek • Carpenter Creek 

• Harvey Creek • Storm Lake Creek • Antelope Creek 

• Woodson Creek • Ten Mile Creek • Rattler Gulch 

• Wallace Creek • Cramer Creek • Dempsey Creek • Dog 
Creek • EUiston Creek • Gold Creek • Hoover Creek 

Flint-Rock Sub-Basin 

Brewster Creek • Scotchman Gulch • Sluice Gulch • Basin 
Gulch • Eureka Gulch • Cornish Gulch • South Fork Ante- 
lope Creek • Miners Gulch • Willow Creek • Flat Gulch 

• Sawmill Gulch Saw Pit • Williams Gulch • Quartz Gulch 

• East Fork Rock Creek • West Fork Rock Creek • Rock 
Creek Mainstem • Douglas Creek • Camp Creek • 
Londonderry Adit • Smart Creek* Stewart Creek • fTint Creek 

• Fred Burr Creek • South Fork Willow Creek • Boulder Creek 

• North Fork Douglas Creek • Princeton Gulch 

Blackfoot Sub-Basin 

Blackfoot River • Black Bear Creek • Frazier Creek 

• Chamberlin Creek • Marcum Creek • North Fork Black- 
foot River • Union Creek • West Fork Ashby Creek • Elk 
Creek • Keno Creek • Cottonwood Creek • Willow Creek 

• Blanchard Creek • Richmond Creek • Sandbar Creek 

• Washington Creek • Douglas Creek • Cottonwood Creek 

• Wales Creek • Ward Creek • Warren Creek • Yourname 
Creek • Poorman Creek • Camas Creek • Deer Creek 

• West Fork Clearwater River • Buck Creek • Monture Creek 

• Belmont Creek • Arrastra Creek • Nevada Spring Creek 
• Rock Creek • Beartrap 
Creek • Day Gulch • 
Washoe Creek • Murray 
Creek • Ratder Gulch • 
Bear Creek Flats • Cramer 
Creek • Deep Creek • East 
Ashby • Jefferson Creek • 
Gallagher Creek • Braziel 
Creek • Nevada Creek 



Upper Clark Fork River Basin 

STEERING COMMITTEE 

The Steering Committee members and the constituency or area they represent along with 
the entity that appointed them (noted m itahcs) include: 



Audrey Aspholm 

400 Elm St. 
Anaconda, MT 58711 
563-6949 
Attacotida-Deer Lodge 

Bob Benson 

Clark Fork-Pend Oreille Coalition 

2325 Valley Drive 

Missoula. MT 59801 

549-1426 

DNRC Director 

Robin Bullock, ARCO 

307 E. Park St., Suite 301 
Anaconda, MT 59711 
563-5211 
DNRC Director 

Jim Dinstnore, Hall Rancher 

RO. Box 224 

Hall, MT 59858 

288-3393 

Granite Conserifation District 

Holly Franz 

Montana Power Company 

Gough, Shanahan, et. al. 

P.O.Box 1715 

Helena, MT 59624-1715 

442-8560 

DNRC Director 

Commissioner Michael J. GrifiBth 

City County Building 

P.O.Box 1724 

Helena, MT 59624 

447-8304 

Lewis and Clark County 



Gary Ingman 

Montana Department of 
Environmental Quality 
Capitol Station 
Helena, MT 59620 
444-1420 
DNRC Director 

Commissioner Michael Kennedy 

200 W. Broadway St. 

Missoula, MT 59802-4292 

523-4902 

Missoula County Commission 

Eugene Manley 

Hint Creek Valley 

1 5 Willow Tree Lane 

HaU, MT 59837 

288-3409 

Granite County Commission 

Brent Mannix 

Big Blackfoot Rancher 

2434 Highway 141 

HelmviUe, MT 59843 

793-587 

North Powell Conservation District 

Martha E. McClain 

Deputy County Attorney 

Missoula County 

200 W. Broadway 

Missoula, MT 59802-4292 

523-4737 

Missoula Conservation District 



Representative Doug Mood 

Vice President 

Pyramid Mountain Lumber 

RO. Box 42 

Seeley Lake, MT 59868 

677-2291 

DNRC Director 

Susie Peraino, Rock Creek 
RO. Box 371 
Cbnton, MT59825 
825-3295 
DNRC Director 

Don Peters, Montana Department 

ofFish,Wildhfe& Parks 

3201 Spurgin Road 

Missoula, MT 59801 

542-5500 

DNRC Director 

Jim C. Quigley 

Little Blackfoot Rancher 
Sunset Ranch 
Box 256 

Avon, MT 59713 
492-6542 
DNRC Director 

Steve Schombel 

Trout Unlimited 
2200 Applewood Lane 
Missoula, MT 59801 
721-4686 
DNRC Director 



John Sesso 

Butte/Silverbow Planner 
155 West Granite 
Butte, MT 59701 
723-8262 
Butte /Sitverhow 

Representative Liz Smith 

311 Freezeout Lane 
Deer Lodge, MT 59722 
846-1763 
DNRC Director 

Ole Ueland 

Silverbow Rancher 

R.R. 3 

Silver Bow, MT 59750 

782-6190 

Mile High Conservation District 

John Vanisko 

Deer Lodge Valley Rancher 

1311 Bowman Road 

Deer Lodge, MT 59722 

693-2360 

Deer Lodge Conservation District 

Jules Waber, Powell County 
Superintendent of Schools 
821 West River Road 
Deer Lodge, MT 59822 
846-3680, extension 32 
Powell County Commission 

Gerald Mueller, Facilitator 
7165 Old Grant Creek Road 
Missoula, MT 59802 
543-0026 



Northern Lights Institute 

Clark Fork Steering Comtnmittee 

P.O. Box 8084 

Missoula, MT 59807-8084 



Non-profit Organization 

U.S. Postage 

PA 1 D 

Missoula, MT 59801 

Permit #74 



H«ROLD L. CHAMBERS 
MONTftN« STATE LIBRARY 
1515 E. SIXTH AVENUE 
HELENA MT 59620